Prólogo: O primeiro documento a seguir é a decisão mais importante até hoje no caso da UDV-USA.

Eis os fatos mais importantes sobre a decisão:

1) trata-se de um pedido para uma “preliminary injunction” trazido pela UDV-USA, cujo vegetal foi confiscado pelo governo federal. Não houve processo criminal, nem tem sido, até hoje, um julgamento final sobre o caso. É tudo para decidir se a UDV pode continuar a praticar sua religião enquanto a corte decide qual será a disposição final do processo. (Já vai fazer 6 anos que estão neste processo.)

2) o juiz rejeitou os seguintes argumentos:

            a) que o governo não pode permitir que os índios usem peiote sem permitir que a UDV use vegetal;

            b) que o “Controlled Substances Act,” a principal lei de controle às drogas do país, não se aplica ao ayahuasca;

            c) que o First Amendment à Constituição dos EUA protege as práticas da UDV;

            d) que a lei internacional exige que o governo permita o uso do vegetal pela UDV.

3) o juiz aceitou o argumento de que o governo federal não mostrou que sua proibição ao vegetal foi feita em acordo com o Religious Freedom Restoration Act de 1993 (passado depois de uma decisão da Supreme Court que por muito enfraqueceu a liberdade de religião no país). Esta lei afirma que qualquer lei que impede a liberdade religiosa tem que: a) responder a um interesse de grande importância do governo (“compelling interest”) e b) impedir a liberdade da religião em questão do modo menos restringente (“least restrictive means”).

4) foi uma decisão importante a favor da UDV, mas já se passaram quase 3 anos e o governo ainda está recorrendo da decisão a várias cortes; a próxima seria a Supreme Court

5) no final de 2004, a UDV conseguiu permissão de recomeçar suas sessões com o vegetal. Agora espera-se a decisão da Supreme court se vai examinar o processo ou não.

Após esse documento, seguem-se outros que também fazem parte do processo.

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL (a.k.a. Uniao do Vegetal) (USA) ("UDV-USA"), a New Mexico Corporation on its own behalf and on behalf of all its members in the United States, JEFFREY BRONFMAN, individually and as President of UDV-USA, CHRISTINA BARRETO, individually and as Secretary of UDV-USA, FERNANDO BARRETO, individually and as Treasurer of UDV-USA, CHRISTINE BERMAN, MITCHEL BERMAN, JUSSARA de ALMEIDA DIAS, PATRICIA DOMINGO, DAVID LENDERTS, DAVID MARTIN, MARIA EUGENIA PELAEZ, BRYAN REA, DON ST. JOHN, CARMEN TUCKER, and SOLAR LAW, individually and as members of UDV-USA, Plaintiffs, v. JOHN ASHCROFT, Attorney General of the United States, DONNIE R. MARSHALL, Administrator of the United States Drug Enforcement Administration, PAUL H. O'NEILL, Secretary of the Department of Treasury of the United States, DAVID IGLESIAS, United States Attorney for the District of New Mexico, and JOHN O'TOOLE, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico, all in their official capacities, Defendants.

CIV. No. 00-1647 JP/RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

282 F. Supp. 2d 1236; 2002 U.S. Dist. LEXIS 26749

August 12, 2002, Filed

SUBSEQUENT HISTORY: Motion denied by, Injunction denied by O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1271, 2002 U.S. Dist. LEXIS 26750 (D.N.M., 2002)
Affirmed by O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 2003 U.S. App. LEXIS 18373 (10th Cir. N.M., 2003)
Affirmed by, On rehearing at O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 2004 U.S. App. LEXIS 23781 (10th Cir. N.M., Nov. 12, 2004)


DISPOSITION:  [**1]  Plaintiffs' Motion for Preliminary Injunction denied. Plaintiffs' Motion for Preliminary Injunction granted as to their claim under the Religious Freedom Restoration Act.

COUNSEL: For O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, aka Uniao do Vegetal (USA) Inc, JEFFREY BRONFMAN, DANIEL TUCKER, CHRISTINA BARRETO, FERNANDO BARRETO, CHRISTINE BERMAN, MITCHEL BERMAN, JUSSARA DE ALMEIDA DIAS aka Jussara Almeida Dias, PATRICIA DOMINGO, DAVID LENDERTS, DAVID MARTIN, MARIA EUGENIA PELAEZ, BRYAN REA, DON ST JOHN, CARMEN TUCKER, SOLAR LAW, plaintiffs: John W. Boyd, Esq., Nancy Hollander, Esq., Freedman Boyd Daniels Hollander Goldberg & Cline, PA, Albuquerque, NM.

For JANET RENO, DONNIE R MARSHALL, LAWRENCE H SUMMERS, NORMAN BAY, JOHN O'TOOLE, defendants: Raymond Hamilton, Esq., Norman C Bay, Esq, US Attorney's Office, District of New Mexico, Albuquerque, NM.

For JANET RENO, DONNIE R MARSHALL, LAWRENCE H SUMMERS, NORMAN BAY, JOHN O'TOOLE, defendants: Vincent M Garvey, Elizabeth Goitein, Esq, US Department of Justice, Washington, DC.

SANTO DAIME CHURCH, aka Church of the Holy Light of the Queen, amicus: Thomas E. Luebben, Jr., Esq., Albuquerque, NM.

SANTO DAIME CHURCH [**2]  aka Church of the Holy Light of the Queen, amicus: Roy S. Haber, Esq., Roy S. Haber, PC, Eugene, OR.

NATIVE AMERICAN CHURCH OF OKLAHOMA, NATIVE AMERICAN CHURCH OF NORTH AMERICA, NATIVE AMERICAN CHURCH OF THE KIOWA TRIBE OF THE STATE OF OKLAHOMA, amicus: David T Gomez, Esq, Roth, Van Amberg, Rogers, Ortiz, Fairbanks & Yepa, LLP, C. Bryant Rogers, Esq., Santa Fe, NM.

JUDGES: James A. Parker, CHIEF UNITED STATES DISTRICT JUDGE.

OPINIONBY: James A. Parker

OPINION:  [*1238]  MEMORANDUM OPINION AND ORDER

The Plaintiffs' Motion for Preliminary Injunction (Doc. No. 10), filed December 22, 2000, raised the following issues: n1

 [*1239]  1. Whether the federal government infringed Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, made applicable to federal statutes by the Due Process Clause of the Fifth Amendment, by selectively enforcing the Controlled Substances Act (CSA) against Plaintiffs. In a Memorandum Opinion and Order filed February 25, 2002, this Court ruled that the Defendants did not violate Plaintiffs' rights under the Equal Protection Clause.

2. Whether, as Plaintiffs contend, several canons of statutory construction instruct [**3]  that the CSA's treatment of dimethyltryptamine (DMT) as a controlled substance does not extend also to include hoasca as a controlled substance. The Court rejects this argument and holds that the plain language of CSA chosen by Congress clearly covers hoasca as a controlled substance.

3. Whether by interpreting CSA to prohibit the Plaintiffs' use of hoasca, the Defendants have violated Plaintiffs' rights under the Free Exercise Clause of the First Amendment to the United States Constitution by restricting Plaintiffs' religious practices, which focus on the use of hoasca. The Court concludes that the Defendants have not infringed Plaintiffs' rights under the First Amendment because Congress drafted and promulgated CSA as a neutral law of general applicability and the burden it puts on Plaintiffs' practices does not violate the First Amendment.

4. Whether doctrines of international law direct that Defendants, as representatives of the United States government, should permit the Plaintiffs' ceremonial use of hoasca. The Court rules that international law principles do not override Congress' clear application of the CSA to any use of hoasca in the United States.

5. Whether [**4]  the Defendants have met the heavy burden, imposed by Congress on the government through passage of the Religious Freedom Restoration Act (RFRA), to prove that the CSA's restriction on Plaintiffs' religious practices regarding use of hoasca furthers a compelling governmental interest through the least restrictive means. The Court begins with the observation that Defendants, at this stage of this action,  [*1240]  have explicitly conceded that Plaintiffs have established a prima facie case under RFRA, and the Court concludes that, on the basis of the evidence presented thus far, the government has failed to meet its high burden of proof, entitling Plaintiffs to a preliminary injunction based on RFRA.

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n1 This Court recognizes that in addition to the claims discussed in this Memorandum Opinion and Order, the Plaintiffs' Complaint and Motion for Preliminary Injunction included a claim under the Administrative Procedure Act (APA), 5 U.S.C. § 701-706. The APA grants courts the authority to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... contrary to constitutional right, ... [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2). As the Government observes, the Plaintiffs' APA claim is derivative- it hinges on the success of the Plaintiffs' analyses of their other claims. The main significance of the APA claim at this stage of litigation seems to relate to the type of relief that the Plaintiffs seek. The Plaintiffs maintained in their brief in support of their Motion for Preliminary Injunction that the APA empowers this Court to set aside the Government's decision that the Plaintiffs are subject to prosecution for possessing hoasca and to order the Government to return the seized hoasca to the UDV.

The Plaintiffs' Complaint and Motion for Preliminary Injunction also raised claims under the Fourth and Fifth Amendments to the United States Constitution. Under the Fourth Amendment, the Plaintiffs argue that the Government lacked a legal basis to seize the hoasca belonging to the Plaintiffs, and under the Fifth Amendment, the Plaintiffs argue that they were deprived of their hoasca without due process of law. The Plaintiffs rely on their Fourth and Fifth Amendment theories to maintain that they are entitled to the return of the hoasca. The Court believes that, like the APA claim, these claims are derivative of the claims asserted by the Plaintiffs that are discussed at great length in this Memorandum Opinion and Order.

Because the Plaintiffs' APA, Fourth Amendment, and Fifth Amendment claims primarily concern questions about the type of relief the Plaintiffs seek, the Court will defer ruling on these claims at this time.


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 [**5] 

I. BACKGROUND

This case centers on a tea, called hoasca, brewed from two plants native to the Amazon River Basin in South America. The consumption of hoasca plays a central role in the religious ceremonies of the O Centro Espirita Beneficiente Uniao do Vegetal (UDV). n2 Founded in Brazil in 1961, the UDV church blends Christian theology with traditional indigenous religious beliefs. Church doctrine instructs that hoasca is a sacrament, and UDV members ingest the tea during church services. About 8,000 people belong to the UDV in Brazil. In 1993, the UDV officially established a branch of the church in the United States. The United States branch of the UDV, headquartered in Santa Fe, New Mexico, has about 130 members.

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n2 The term "hoasca" refers to the specific tea preparation used in the UDV. "Ayahuasca" is a broader term that refers to a category of South American teas containing DMT and beta-carbolines. Some witnesses quoted in this Memorandum Opinion and Order use the terms "hoasca" and "ayahuasca" interchangeably.


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The plants used to make hoasca do not grow in this country, and prior to 1999, UDV leaders in the United States imported the tea from Brazil for use in church ceremonies. On May 21, 1999, the United States Customs Service seized a substantial quantity of hoasca from the UDV in the United States. The federal government takes the position that the Controlled Substances Act (CSA), 21 U.S.C. § 801, et seq., prohibits the possession and use of hoasca. One of the plant components of the tea contains dimethyltryptamine (DMT), a hallucinogenic chemical. Under the CSA, DMT is a "Schedule I" controlled substance and hence subject to strict controls. Although the United States has not filed any criminal charges stemming from UDV officials' possession of hoasca, the government has threatened prosecution for future possession of the tea. In light of the government's interpretation of the CSA's application to hoasca, the UDV has ceased using the tea in the United States.

The Plaintiffs in the present action are the United States branch of the UDV, as well as several church leaders and members in the United States. On November 21, 2000, the Plaintiffs filed a Complaint [**7]  for Declaratory and Injunctive Relief (Doc. No. 1), alleging violations of the Religious Freedom Restoration Act, the First Amendment to the United States Constitution, Equal Protection principles, the Fourth Amendment, the Fifth Amendment, the Administrative Procedure Act, and international laws and treaties. In addition, the Complaint asserts that the CSA does not apply to hoasca. On December 22, 2000, the Plaintiffs filed a Motion for Preliminary Injunction (Doc. No. 10). This Court held a hearing on the Plaintiffs' motion October 22 through November 2, 2001, during which the parties presented evidence and arguments on a number of issues.

As previously noted, on February 25, 2002, the Court entered a Memorandum Opinion and Order denying the Plaintiffs' Motion for Preliminary Injunction as to their Equal Protection claim. This Memorandum Opinion and Order addresses the other grounds on which the Plaintiffs base their Motion for Preliminary Injunction.

 [*1241]  II. STANDARD OF REVIEW

Under Tenth Circuit law, "[a] movant is entitled to a preliminary injunction if he can establish the following: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury [**8]  to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). This Memorandum Opinion and Order focuses on the Plaintiffs' likelihood of success on the merits of their First Amendment, RFRA, statutory construction, and international law claims.

This Court recognizes that "if the party seeking the preliminary injunction can establish the last three factors ... then the first factor becomes less strict--i.e., instead of showing a substantial likelihood of success, the party need only prove that there are 'questions going to the merits ... so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.'" Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246-1247 (10th Cir. 2001), quoting Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). However, given the breadth of the parties' briefing in [**9]  this case, and the extensiveness of the arguments and evidence presented at the hearing, it seems appropriate to consider the substance of the Plaintiffs' claims at this time. The Court's decisions in this Memorandum Opinion and Order will not foreclose the parties from presenting additional evidence at a trial on the merits. For example, this Court understands that the Government may wish to contest at a later time whether the Plaintiffs have established a prima facie case under RFRA, and that the Plaintiffs may wish to develop a selective prosecution argument.

III. DISCUSSION

A. FIRST AMENDMENT CLAIM

The First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." The Supreme Court has observed that "in addressing the constitutional protection for free exercise of religion, [its] cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993), [**10]  citing Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). In contrast, a law that is not neutral and is not generally applicable "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Lukumi, 508 U.S. at 531-32.

While an evaluation of a free exercise claim typically begins by considering whether the plaintiffs have shown that a governmental action substantially burdens their religious practices, Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1989), the Court need not address that preliminary issue in this case. The Government does not contest, at this stage of litigation, that its interpretation of the CSA which prohibits ceremonial hoasca use substantially burdens the Plaintiffs' exercise of their religion. Therefore, this Court turns to the question of whether the  [*1242]  CSA is a neutral law of general applicability.

The Plaintiffs argue that the CSA "cannot be characterized as a neutral law of general applicability," because the statute "provides a wide variety of exceptions, exemptions and licenses permitting the use [**11]  of controlled substances in non-religious settings." Reply, at 31. As support for their argument that the CSA is neither neutral nor generally applicable, the Plaintiffs point to the exemptions set forth in the statute for certain uses of controlled substances. For example, 21 U.S.C. § 872(e) provides that the Attorney General "may authorize the possession, distribution, and dispensing of controlled substances by persons engaged in research." Elsewhere in the CSA, 21 U.S.C. §§ 822 and 823 outline procedures for the Attorney General to use in registering entities that engage in the manufacture and distribution of controlled substances for medical, scientific, research, and industrial purposes.

As the Government observes, the Plaintiffs' analysis seems to deviate from Supreme Court and Tenth Circuit precedent regarding whether controlled substances laws are neutral and generally applicable. In Smith, the Supreme Court considered an Oregon drug statute which prohibited the possession of peyote, among other substances, and which contained no exception for the religious use of controlled substances. The plaintiffs in Smith had been fired [**12]  from their jobs for consuming peyote in a ceremonial setting, and the state denied their applications for employment benefits on the basis that the plaintiffs' dismissal stemmed from their use of a controlled substance. The plaintiffs maintained that Oregon had violated their free exercise rights by enforcing the statutory prohibition against peyote to restrict the plaintiffs' religious use of the substance.

Rejecting the Smith plaintiffs' argument, the Supreme Court stated that its "decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Id. at 879, quoting United States v. Lee, 455 U.S. 252, 263, n.3, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982) (Stevens, J., concurring in judgment). The Government stresses that the Oregon law upheld in Smith provides exemptions for the use of controlled substances similar to those outlined in the federal Controlled Substances Act. O.R.S. § 475.125. Thus, according to the Government, "Smith itself effectively answers Plaintiffs'  [**13]  claim that the medical, scientific, industrial, and research exemptions contained in the Controlled Substances Act render the Act non-neutral and not generally applicable." Response, at 39.

The Tenth Circuit relied on Smith in order to reach its decision in United States v. Meyers, 95 F.3d 1475 (1996). In Meyers, a criminal defendant charged with marijuana offenses under the federal Controlled Substances Act alleged that his adherence to the "Church of Marijuana" required him to distribute the drug. The Tenth Circuit declined to accept Mr. Meyers's argument that the CSA's prohibition of marijuana distribution violated his First Amendment rights. The court held that "Meyers' challenge fails for the same reasons as the respondents challenge in Smith failed, i.e., the right to free exercise of religion under the Free Exercise Clause of the First Amendment does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law incidentally affects religious practice." Id. at 1481. The comments of the Meyers  [*1243]  court reflect an assumption that the CSA is a neutral, generally applicable [**14]  law within the meaning of Smith. The court stated, for example, that "when, as here, the challenge is to a valid neutral law of general applicability, the law need not be justified by a compelling governmental interest." Id., citing Lukumi Babalu Aye, 508 U.S. at 521 (emphasis added).

Given the opinions in Smith and Meyers, this Court believes that it has little leeway to accept the Plaintiffs' argument that the CSA is not a neutral, generally applicable law. However, the Plaintiffs contend that this case is distinguishable from Smith and Meyers. The Plaintiffs maintain that Smith and Meyers are distinct from the present case in that the courts in Smith and Meyers were not considering the issue of whether exemptions for scientific research and other uses would render a drug law non-neutral or not generally applicable. In Smith and Meyers, the parties raising First Amendment challenges to controlled substance laws were not contesting the neutrality or general applicability of those laws. Instead, they were claiming that otherwise-valid laws that incidentally burden the practice of a person's religion could violate that [**15]  individual's free exercise rights. See Smith, 494 U.S. at 878 (Observing that the plaintiffs "contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons"); Meyers, 95 F.3d at 1481 (Taking note of criminal defendant's suggestion that even a neutral, generally applicable law must be justified by a compelling government interest if it imposes a burden on religious conduct.)

This Court will therefore consider whether the CSA is a neutral, generally applicable law in light of the exceptions that it provides for research and other uses. The United States Supreme Court examined the concepts of neutrality and general applicability in Lukumi, 508 U.S. 520, 124 L. Ed. 2d 472, 113 S. Ct. 2217. In Lukumi, a church affiliated with the Santeria religion challenged several ordinances that had been enacted by the Hialeah, Florida city council. Animal sacrifice plays a significant role in the practice of Santeria. When the plaintiff church announced plans to open a house of worship [**16]  in Hialeah, the city council passed ordinances banning the ritual killing of animals but permitting the killing of animals in many other contexts.

The Supreme Court concluded that Hialeah's regulatory scheme was neither neutral nor generally applicable. The ordinances failed the neutrality test because, taken together, they amounted to a "religious gerrymander." Id. at 535, quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970) (Harlan, J., concurring). The city council had essentially prohibited the killing of animals for religious reasons while exempting from prohibition almost all non-religious killing. The Hialeah ordinances were not generally applicable, because they were underinclusive with regard to the laws' purported goals, ultimately "pursuing the city's governmental interests only against conduct motivated by religious belief." In reaching its decision, the Lukumi court provided helpful guidelines for analyzing the concepts of neutrality and general applicability. This Court will draw on these guidelines in assessing the Plaintiffs' position.

1. NEUTRALITY

Under Lukumi, in order to establish that a law is not neutral,  [**17]  a plaintiff must show "that the object or purpose of [the]  [*1244]  law is the suppression of religion or religious conduct." Id. at 533. The Lukumi court explained that "the minimum requirement of neutrality is that a law not discriminate on its face," but that "facial neutrality is not determinative." Id. at 533-34. Because "the Free Exercise Clause protects against governmental hostility which is masked, as well as overt," courts should look beyond the surface for indications that the purpose of a law is to suppress religion. Id. at 534. The court observed that "the effect of a law in its real operation is strong evidence of its object." Id. at 535.

The Plaintiffs in the present case do not appear to contend that, on its face, the CSA targets the religious use of drugs. Rather, the Plaintiffs seem to argue that a comparison between the statute's treatment of secular uses, as opposed to its treatment of religious uses, supports the inference that the CSA's purpose is to limit the religious use of controlled substances. The Plaintiffs maintain that "the CSA is not neutral as between secular and religious interests," because the law exempts the secular use of controlled substances in [**18]  medical, scientific, industrial, and research settings, but bans almost all religious uses of controlled substances. n3

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n3 The Plaintiffs also argue that the CSA is not neutral between religions, because the law provides an exemption for the Native American Church's ceremonial use of peyote. The Court has already addressed this issue at length, in the context of the Plaintiffs' claims under the Equal Protection clause and the Establishment Clause. In its Memorandum Opinion and Order entered February 25, 2002, the Court found that the federal government's peyote exemption policy does not constitute impermissible favoritism toward the Native American Church.


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The Plaintiffs' failure to take into account the full spectrum of potential uses for drugs undercuts their argument, however. For example, the Plaintiffs ignore a very important category of secular drug use- recreational drug use. This Court imagines that there are a number of individuals in the United States who may wish to use a given controlled substance [**19]  in a setting that is neither scientific nor ceremonial in a religious context. The CSA restricts the freedom of recreational users, as well religious users, to consume controlled substances. This Court cannot reasonably infer from the way that the CSA operates that the purpose of the law is to target religious ceremonial drug use. This case therefore presents much different circumstances from Lukumi, where the Supreme Court found, upon examining the operation of the challenged city ordinances, that "it is a necessary conclusion that almost the only conduct subject to [the ordinances] is the religious exercise of Santeria church members." Id. at 535.

2. GENERAL APPLICABILITY

Discussing the requirement of general applicability, the Lukumi court observed that "all laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice." Id. at 542. The "government ... cannot in a selective manner impose burdens only on conduct motivated by religious belief." Id. at 543. The ordinances at issue in Lukumi were so deficient that the court declined to "define with precision the standard used [**20]  to evaluate whether a prohibition is of general application." Id. However, the Lukumi court made clear that a law is not generally applicable if it was purportedly adopted to protect certain interests, yet "fails to prohibit nonreligious conduct that endangers these interests  [*1245]  in a similar or greater degree than [the banned religious conduct] does." Id.

In Lukumi, for example, the city of Hialeah claimed that one of the goals of the contested ordinances was to prevent cruelty to animals. The Supreme Court noted, though, that "many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision." Id. at 543. Hunting, fishing, rodent extermination, and the euthanasia of stray animals all continued to be legal. The Lukumi court concluded that "despite the city's proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice." Id. The Court found that the ordinances were similarly underinclusive with respect to the city's claimed goal of protecting public health.

The Third Circuit examined the general applicability requirement [**21]  in an opinion cited by both the Plaintiffs and the Government. In Fraternal Order of Police v. City of Newark, 170 F.3d 359 (1999), a Newark Police Department policy required police officers to shave their beards. The police department allowed exceptions to the shaving policy for officers who had medical reasons for not shaving and for undercover officers. Two police officers challenged the departmental policy on the ground that they are Sunni Muslims and their religion prohibits them from shaving.

The Third Circuit found that while the exemption for undercover officers did not diminish the general applicability of the beard policy, the medical exemption did. The Department had adopted the policy to promote a uniform appearance among its officers. The Third Circuit pointed out that "the undercover exception ... does not undermine the Department's interest in uniformity because undercover officers 'obviously are not held out to the public as law enforcement personnel.'" Id. at 366 (citing reply brief.) In contrast, "the medical exemption raises concern because it indicates that the Department has made a value judgment that secular (i.e., medical) motivations [**22]  for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not." Id. at 366.

Like the Third Circuit, the District of Nebraska found that a governmental policy failed to meet the general applicability standard elucidated in Lukumi. Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) concerned a University of Nebraska-Kearney rule requiring freshmen to live in dormitories on campus. University officials represented that the goals of the policy were to promote diversity and tolerance, encourage academic achievement, and, for financial reasons, to make sure that there were enough students living on campus to fill the dorms. The plaintiff, a devout Christian, requested an exemption from the on-campus housing policy, so that he could live instead in an off-campus Christian housing facility. The plaintiff maintained that the lifestyle in the dorms, where many students drank alcohol and had parties, would interfere with the practice of his religion. When the university denied the plaintiff's application for an exemption, he brought a claim under the Free Exercise clause.

In reaching its decision,  [**23]  the District of Nebraska took note of the many categories of freshmen exempt from the housing rule. The policy enumerated exceptions for married students, students with parents living nearby, part-time students, and students who were older than nineteen at the start of the school year. In addition, university officials granted a significant number of exceptions to students applying for waivers based on a variety of special circumstances. Evidence showed that in practice,  [*1246]  the university applied the housing rule to only 1,600 of 2,500 freshmen. The District of Nebraska cited the fact that "over one third of the freshman students ... are not required to comply with the parietal rule" in determining that "the parietal rule cannot be viewed as generally applicable to all freshman students." Id. at 1553. The court stressed that "although exceptions are granted by the defendants for a variety of non-religious reasons, they are not granted for religious reasons." Id. at 1553.

In this case, the Court will follow the approach outlined in Lukumi. In order to evaluate the general applicability of the CSA, this Court will inquire into whether the statute is substantially [**24]  underinclusive as to its purported aims- whether the CSA "fails[s] to prohibit nonreligious conduct that endangers" governmental interests "in a similar or greater degree than" the religious ceremonial consumption of controlled substances does. In their memorandum in support of the motion for preliminary injunction, the Plaintiffs emphasize that through the CSA's registration scheme for drugs used in medical, scientific, industrial, and research settings, huge amounts of controlled substances are produced and distributed. However, this Court believes, as does the Government, that the Lukumi framework requires the Plaintiffs to demonstrate more than that the CSA includes significant exceptions for certain secular uses of controlled substances. Rather, the Plaintiffs must show that the research and scientific exceptions to the CSA jeopardize the same interests that the government uses to justify the restrictions on religious conduct imposed by the CSA.

The Court concludes in this case that the secular exceptions specified in the CSA do not implicate the purpose of the law. The Government has suggested that in enacting the CSA, "Congress's primary target was a secular one: the [**25]  recreational use of controlled substances." Reply at 37, citing H.R. Rep. No. 91-1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.C.C.A.N. 4566. This Court agrees that the CSA reflects Congressional concern about the risks to public health and safety associated using controlled substances. Included among the findings at the beginning of the CSA is the statement that "the illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." 21 U.S.C. § 801(2).

As the Third Circuit explained in the City of Newark case, "the Free Exercise Clause does not require the government to apply its laws to activities that it does not have an interest in preventing." 170 F.2d at 366. Here, allowing certain uses of drugs in controlled scientific, research, and medical environments does not run counter to the government's interest in promoting public health. The unregulated consumption of drugs in ceremonial settings may present risks of adverse health effects and illegal diversion in a way that the research exceptions do [**26]  not. See, e.g., Hrg. Tr. at 864, Testimony of Sander Genser (Discussing why controlled research settings ensure relative safety.) This Court concludes that the CSA meets the standard for general applicability, because the law generally applies to the uses of controlled substances that endanger public health.

While the Plaintiffs' initial argument in favor of their free exercise claim focused on the research exemptions set forth in the CSA, the Plaintiffs' reply brief and trial brief present a different contention- that although some plants growing within the United States contain DMT, "the government has singled out hoasca for suppression  [*1247]  and has singled out the adherents of the UDV for threat of criminal prosecution." Reply, at 34. According to the Plaintiffs, "the Department of Justice, DEA and Customs have made the administrative decision to remain aloof from any thorny decision regarding the possession and abuse of DMT-containing plants that grow in this country and has chosen, instead, to limit its enforcement efforts to religious use of DMT-containing plants." Supplemental Trial Memorandum, at 5. The Plaintiffs seems to draw on an Equal Protection theory, arguing that even if [**27]  the CSA is impartial, the Government is applying it in a way that discriminates against the Plaintiffs on the basis of religion. (See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976), stating that "equal protection analysis requires strict scrutiny of a legislative classification ... when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.")

During the hearing, the Plaintiffs presented evidence showing that certain plants growing in this country, including phalaris grass, contain DMT. The Plaintiffs' evidence included a document showing that the United States Department of Agriculture even recommends using one kind of phalaris for erosion control. The Plaintiffs appear to argue that if people are allowed to grow phalaris grass for nonreligious reasons, while the UDV's supply of hoasca is confiscated, this Court should conclude that the federal government must be discriminating against the Plaintiffs on the basis of religion. The Court does not believe that the evidence about phalaris would necessarily lead to that conclusion. Individuals with phalaris [**28]  grass in their lawns may possess DMT in some sense. However, if there are no indications that the people with phalaris lawns are consuming the grass, law enforcement might legitimately choose not to prosecute, for reasons other than that the grass is being used for the secular purpose of having a lawn. Federal law enforcement entities might prioritize focusing on the UDV's hoasca use not because the use is religious, but instead because UDV members make much more extensive use of hoasca by personally ingesting it than a person with a phalaris lawn makes of the grass. Before their tea was confiscated, UDV officials regularly distributed the tea to church members for consumption.

Some evidence presented at the hearing suggested that non-religious consumption of plants containing DMT does take place in the United States. This evidence included materials taken from the internet- advertisements for plants containing DMT and testimonials from people claiming to have used teas similar to hoasca. While such evidence might eventually contribute to support an argument that the UDV was selectively prosecuted on the basis of religion, this evidence, standing alone, is insufficient to create [**29]  an inference that selective prosecution in fact occurred. As the Government observes, the use of DMT reported on the internet differs in scale from the UDV's use, and the authorities may have chosen to target the UDV for reasons other than religion. The Government notes that "the possibility that an internet account of a single dose may be accurate and could be reliably traced to the perpetrator cannot compare to the actual interception of 3,000 doses of an illegal substance being imported for distribution." Trial Memorandum, at 13.

In its February 25, 2002 Memorandum Opinion and Order addressing the Plaintiffs' Equal Protection claim, the Court noted that Plaintiffs' counsel have represented that following discovery, the Plaintiffs may pursue a claim that the government has impermissibly targeted the UDV  [*1248]  in particular for prosecution. By finding that the Plaintiffs' evidence is not sufficient at this time to support a preliminary injunction based on a selective prosecution theory, the Court does not intend to foreclose further efforts by the Plaintiffs to develop that theory.

B. PLAINTIFFS' ARGUMENT THAT THE CSA DOES NOT EXTEND TO HOASCA

This Court has thus far assumed, in considering [**30]  the Plaintiffs' claims under the United States Constitution, that the CSA's ban on DMT applies to hoasca. The Plaintiffs argue, however, that "even if the Defendants were not violating Plaintiffs' rights under RFRA and the Free Exercise and the Equal Protection clauses, their actions are nonetheless illegal because hoasca is not a controlled substance" under the CSA. The Plaintiffs acknowledge that "one of the plants that comprise Hoasca, psychotria viridis, is naturally composed, in very small part, of DMT." The Plaintiffs also recognize that DMT is scheduled as a controlled substance under the CSA. They maintain, though, that the CSA prohibits only synthetic DMT, and not the DMT occurring naturally in plants. The Plaintiffs premise this argument on the proposition that the language of the CSA is ambiguous as applied to DMT in a natural state.

As the United States Supreme Court has made clear, "the starting point for ... interpretation of a statute is always its language." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989). Thus this Court must first look to the language of the CSA in order to evaluate the Plaintiffs' arguments. The CSA divides [**31]  controlled substances into five schedules, classified according to Congressional determinations regarding each drug's potential for abuse and each drug's accepted medical uses. n4 The CSA places a number of hallucinogenic drugs into Schedule I, the most strictly regulated category. Schedule I(c) provides that "unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances" falls within the Schedule I category. Among the hallucinogens listed in Schedule I(c) is dimethyltryptamine (DMT).

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n4 A drug's placement in Schedule I indicates that the substance "has a high potential for abuse," that it "has no currently accepted medical use in treatment in the United States," and that "there is a lack of accepted safety for use of the drug ... under medical supervision." 21 U.S.C. § 812(b)(1).


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This Court agrees with the Government that the language of the CSA clearly covers hoasca. [**32]  After all, the Plaintiffs do not dispute that one of the plant components of hoasca contains DMT. The Court is constrained to conclude that hoasca tea thus constitutes a "material, compound, mixture, or preparation which contains any quantity" of DMT, within the plain meaning of the statute.

However, the Plaintiffs offer a number of theories of statutory construction to support their argument that the CSA should not be interpreted to apply to plants that contain DMT and to substances derived from those plants. For example, the Plaintiffs stress that Congress is presumed to avoid superfluous drafting. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 574, 131 L. Ed. 2d 1, 115 S. Ct. 1061 (1995). The Plaintiffs observe that the CSA contains a number of instances where Congress expressly banned both a given chemical and the plant in which that chemical is naturally found. Based on this, the Plaintiffs declare that because Congress listed only a chemical substance, DMT, it did not  [*1249]  intend that plants containing that substance would also be prohibited. Otherwise, Congress would have engaged in superfluous drafting elsewhere in the CSA by, for example, explicitly scheduling both peyote (a plant) and mescaline [**33]  (a chemical substance.)

The Plaintiffs have also drawn on the following principles to argue that the CSA should not be interpreted to ban hoasca: 1) the canon that courts should not construe statutory provisions to contradict other parts of a statutory scheme, see e.g., United Sav. Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 98 L. Ed. 2d 740, 108 S. Ct. 626 (1988); 2) the principle of "Expressio unius est exclusio alterius", see e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); 3) the rule of lenity, see e.g. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 97 L. Ed. 260, 73 S. Ct. 227 (1952); and 4) the principle that courts should construe statutes to avoid constitutional problems, see e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979).

The Plaintiffs have presented interesting arguments under all of these theories, and their arguments may well have been persuasive if the statute at issue were any less clear. As the Government points out, however, most of the principles discussed by the Plaintiffs become relevant only if the statutory language is ambiguous. The [**34]  Supreme Court has noted that:

In any event, canons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. See, e.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241-242, 109 S. Ct. 1026, 1030-1031, 103 L. Ed. 2d 290 (1989); United States v. Goldenberg, 168 U.S. 95, 102-103, 18 S. Ct. 3, 4, 42 L. Ed. 394 (1897); Oneale v. Thornton, 10 U.S. 53, 6 Cranch 53, 68, 3 L. Ed. 150 (1810). When the words of a statute are unambiguous, then, this first canon is also the last: "judicial inquiry is complete." Rubin v. United States, 449 U.S. 424, 430, 101 S. Ct. 698, 701, 66 L. Ed. 2d 633 (1981); see also Ron Pair Enterprises, supra, 489 U.S., at 241, 109 S. Ct., at 1030.

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992). More recently, the Supreme Court has explained [**35]  that a court's "first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case,'" and that "the inquiry ceases 'if the statutory language is unambiguous and the statutory scheme is coherent and consistent."' Barnhart v. Sigmon Coal Company, Inc., 534 U.S. 438, 151 L. Ed. 2d 908, 122 S. Ct. 941 (2002), quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 136 L. Ed. 2d 808, 117 S. Ct. 843 (1997).

Granted, a court should not read a statute literally if a literal construction would "lead to irreconcilable inconsistencies or clearly absurd results that Congress could not have intended." Resolution Trust Corp. v. Westgate Partners, Ltd., 937 F.2d 526, 531 (10th Cir. 1991). However, this Court does not believe that interpreting the CSA to prohibit hoasca use results in absurdity or creates an internally-contradictory statute. The Plaintiffs observe that many plants and animals, including humans, contain DMT; and the Plaintiffs imply that because the CSA cannot be read to ban humans, that the statute must apply only to synthetic DMT. Simply because  [*1250]  banning humans would be absurd does not mean that banning any non-synthetic DMT [**36]  found elsewhere would be absurd. Courts confronted with potentially absurd statutory applications are to consider "alternative interpretations consistent with the legislative purpose." Oxy USA, Inc. v. Babbitt, 268 F.3d 1001, 1012 (10th Cir. 2001), quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 73 L. Ed. 2d 973, 102 S. Ct. 3245 (1982). In this case, interpreting the CSA to apply to the ingestion of a tea containing a hallucinogenic chemical seems reasonable, even if interpreting the CSA to apply to the human body does not.

In addition, the Plaintiffs have failed to establish that interpreting the CSA to apply to hoasca would contradict other provisions of the statute. The Plaintiffs have not pointed to any contradictions that directly concern the CSA's treatment of DMT and substances containing DMT. It is not as if the statute places DMT in one schedule and products made with DMT in another schedule, for example. Rather, the Plaintiffs' arguments rely on an analysis of the CSA's approach to other drugs.

The Plaintiffs argue that construing the CSA's prohibition on DMT to apply to hoasca creates a contradiction in the federal peyote exemption scheme. The CSA schedules [**37]  both peyote, a cactus button, and mescaline, the hallucinogenic chemical found in peyote, but the federal regulatory exemption refers only to peyote, and not to mescaline. The Plaintiffs maintain that "if the listing of a substance encompasses all plants that contain the substance, then the exemption for peyote alone is meaningless: the [Native American Church] would violate the CSA at each of its ceremonies by using a plant that contains 'mescaline.'" Memorandum in Support of Motion for Preliminary Injunction, at 33. The Government has effectively countered the Plaintiffs' argument by pointing out that a member of the Native American Church would not violate the CSA by using peyote, even if peyote contains mescaline, because the federal regulatory exemption explicitly permits church members to use peyote.

Because the plain language of the CSA clearly indicates that the statute's prohibition on DMT extends to hoasca, and because the application of the statute does not result in absurdity or in internal contradictions, this Court concludes that hoasca is an illegal substance under the CSA.

C. PLAINTIFFS' CLAIMS UNDER INTERNATIONAL LAW OF COMITY

This Court's conclusion that the [**38]  language of the CSA is unambiguous, with respect to the statute's application to the use of hoasca by the UDV, resolves another of the Plaintiffs' claims. The Plaintiffs contend that the international law doctrine of comity suggests that the government should not interfere with the UDV's religious consumption of hoasca. Comity is "the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws." In the Matter of The Colorado Corp. v. Lam, 531 F.2d 463, 468 (10th Cir. 1976), quoting Hilton v. Guyot, 159 U.S. 113, 40 L. Ed. 95, 16 S. Ct. 139 (1895). The United States Supreme Court has observed that "comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states." Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 543 n. 27, 96 L. Ed. 2d 461, 107 S. Ct. 2542 (1987).

The Plaintiffs stress that courts have [**39]  recognized a "canon of statutory construction that requires courts, whenever possible,  [*1251]  to construe federal statutes to ensure their application will not violate international law." Commodity Futures Trading Commission v. Nahas, 238 U.S. App. D.C. 93, 738 F.2d 487, 493 (D.C. Cir. 1984), citing Murray v. The Schooner Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L. Ed. 208 (1804) ("An act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.") See also, e.g., Grunfeder v. Heckler, 748 F.2d 503, 509 (9th Cir. 1984) ("Absent an expression of congressional intent to the contrary, considerations of courtesy and mutuality require our courts to construe domestic legislation in a way that minimizes interference with the purpose or effect of foreign law.")

The Plaintiffs argue that allowing the Government to prohibit the UDV's ceremonial use of hoasca would conflict with Brazilian law and with a number of international treaties. n5 As Dr. Brito testified during the evidentiary hearing, Brazil permits members of the UDV to consume hoasca for religious reasons. The Plaintiffs also emphasize that international agreements [**40]  to which the United States is a party, such as the United Nations International Covenant on Civil and Political Rights, pledge support for freedom of religious beliefs and practices. Moreover, Plaintiffs direct attention to the International Religious Freedom Act, 22 U.S.C. § 6401-6481, enacted in 1998, which, Plaintiffs say, further reflects Congressional commitment to the promotion of religious freedom throughout the world. n6 According to the Plaintiffs, permitting the ceremonial use of hoasca would "not only show comity to, and enhance our relations with, [Brazil], but will also demonstrate our government's willingness to give appropriate respect to a multi-cultural international community generally." Memorandum in Support of Motion for Preliminary Injunction, at 44.

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n5 The Plaintiffs do not appear to argue that any treaty explicitly or directly requires that the United States refrain from prohibiting the religious use of hoasca. Rather, the Plaintiffs seem to contend that the Government's interpretation of the CSA to apply even to the sacramental consumption of hoasca is inconsistent with general principles of international religious freedom that are reflected in treaties to which the United States is a signatory. Therefore, this Court has not conducted an inquiry into the issue of whether, for example, a later-enacted treaty would trump the ban on DMT contained in the CSA. [**41] 



n6 However, as the Plaintiffs acknowledge, Congress passed this statute to address threats to religious freedom occurring in countries other than the United States.


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Even assuming that principles of international law would favor construing an ambiguous controlled substances statute to allow the religious use of hoasca, this Court believes that the CSA does not leave room for the interpretation the Plaintiffs request. As the United States Court of Appeals for the District of Columbia Circuit eloquently stated in Nahas, "federal courts must give effect to a valid, unambiguous congressional mandate, even if such effect would conflict with another nation's laws or violate international law." 738 F.2d at 495. The sources cited by the Plaintiffs for the proposition that a domestic law should not be interpreted to conflict with international law, such as the Murray and Grunfelder cases, 6 U.S. 64, 2 L. Ed. 208 and 748 F.2d at 509, assume that the domestic law lends itself to more than one interpretation. In this case, the Court has found that, under the plain [**42]  language of the CSA, the statute's ban on DMT clearly extends to hoasca. Comity is not an "absolute obligation," Colorado Corp., 531 F.2d at 468, quoting Hilton, 159 U.S. 113, and this Court cannot rely on the comity principle  [*1252]  to disregard a clear statement from Congress on a matter of domestic law.

D. RELIGIOUS FREEDOM RESTORATION ACT CLAIM

In Section III(A) above, this Court evaluated the Plaintiffs' Free Exercise claim in light of the Supreme Court's holding in Smith that "the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," even if that law incidentally burdens the practice of religion. United States v. Meyers, 95 F.3d 1475, 1480 (10th Cir. 1996), citing Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595. Because this Court concluded that the CSA was neutral and generally applicable, the Court found that the Plaintiffs were not entitled to a preliminary injunction on their First Amendment claim.

However, the Plaintiffs also raise a religious freedom claim that has a statutory, rather than Constitutional, basis. Following the Supreme Court's decision in [**43]  Smith, Congress enacted the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb. In the "Congressional findings and declaration of purposes" section of the statute, Congress criticized the Supreme Court's holding in Smith and stated that RFRA was intended "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)." RFRA provides that:

Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000bb-1(b). n7

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n7 In City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997), the Supreme Court declared RFRA unconstitutional as applied to state governments. However, the Tenth Circuit has held that "RFRA as applied to the federal government is severable from the portion of RFRA declared unconstitutional in Flores, and independently remains applicable to federal officials." 242 F.3d 950, 960 (10th Cir. 2001).


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In order to state a prima facie claim under RFRA, a plaintiff must show "(1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion." Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). If the plaintiff meets "the threshold requirements by a preponderance of the evidence, the burden shifts to the government to demonstrate that the challenged regulation furthers a compelling state interest in the least restrictive manner." Meyers, 95 F.3d at 1482. In this case, the Government did not dispute, for purposes of the Plaintiffs' motion for preliminary injunction, that the Plaintiffs had established a prima facie case under RFRA. Stated differently, the government conceded, at this point in the course of the case, that the CSA imposes a substantial burden on Plaintiffs' sincere exercise of religion. Hence, the hearing began with the Government shouldering the weighty load thrust upon it by Congress in passing RFRA.

1. COMPELLING GOVERNMENTAL INTERESTS

The Government asserts that it "has at least three compelling interests in prohibiting the importation and use of DMT-containing substances, all of which [**45]  are implicated by the UDV's religious use of ayahuasca." Response, at 15. The Government has alleged a compelling interest in 1) adhering to the 1971 Convention on  [*1253]  psychotropic substances; 2) preventing the health and safety risks posed by hoasca; and 3) preventing the diversion of hoasca to non-religious use.

Before turning to a specific analysis of whether the Government has met its burden of establishing a compelling interest, this Court notes that there are two significant distinctions between the present case and many other cases in which individuals have challenged drug laws on religious freedom grounds. First, as observed above, the Government concedes for purposes of this motion that the UDV is a religion, that the Plaintiffs sincerely believe in the tenets of the UDV religion, and that the application of the CSA to the UDV's ceremonial use of hoasca substantially burdens the Plaintiffs' practice of their religion. In contrast, courts in other RFRA cases concerning drugs have sometimes found that the plaintiff's religious beliefs do not constitute religious beliefs, or that the plaintiff does not sincerely hold the beliefs, or that the government's action does not actually [**46]  substantially burden the plaintiff's religious practice.

United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996) involved a criminal defendant who moved under RFRA to dismiss the marijuana charges brought against him. Mr. Meyers "testified that he is the founder and Reverend of the Church of Marijuana and that it is his sincere belief that his religion commands him to use, possess, grow and distribute marijuana for the good of mankind and the planet earth." Id. at 1479. The Tenth Circuit considered whether Mr. Meyers's convictions were "religious beliefs," or whether the convictions instead amounted to "a philosophy or way of life." Id. at 1482. The Tenth Circuit adopted the district court's finding that, in light of the secular nature of Mr. Meyers's views on the medical, therapeutic, and social benefits of marijuana, "Meyers' beliefs more accurately espouse a philosophy and/or way of life rather than a 'religion.'" Id. at 1484.

In United States v. Bauer, 84 F.3d 1549, a Ninth Circuit case, three criminal defendants sought to rely on RFRA in defending against a number of marijuana charges. The defendants were [**47]  adherents to the Rastafarian religion, in which marijuana is a sacrament. The Bauer court emphasized that the availability of RFRA as a defense to the various marijuana charges hinged on whether each particular criminal provision burdened the practice of Rastafarianism. The Ninth Circuit found that the district court had erred in prohibiting the defendants from using RFRA as a defense to simple possession charges. Id. at 1559. However, "as to the counts relating to conspiracy to distribute, possession with intent to distribute, and money laundering, the religious freedom of the defendants was not invaded" because "nothing before [the court] suggests that Rastafarianism would require this conduct." Id. In a more recent Ninth Circuit case, the court cited Bauer in holding that a criminal defendant could not draw on RFRA to defend against charges brought under a Guam statute prohibiting the importation of controlled substances. Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002). The Guerrero court noted that it was "satisfied that Rastafarianism does not require importation of a controlled substance." Id. at 1223.

There is a second [**48]  major distinction between the present case and the cases involving claims that the principles of religious freedom reflected in the Free Exercise Clause and RFRA should be interpreted as permitting the sacramental use of marijuana. This distinction stems from the significant differences in the characteristics of the drugs at issue. Affirming a trial court's denial of a criminal defendants' request to rely in  [*1254]  RFRA as a defense to marijuana charges, the Eighth Circuit stated "that the government has a compelling state interest in controlling the use of marijuana." United States v. Brown, 72 F.3d 134 (8th Cir. 1995) (table). As support for this observation, the Brown court cited a number of First Amendment opinions which had emphasized problems associated with marijuana in particular. See, e.g., United States v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989) ("Every federal court that has considered this issue has accepted Congress' determination that marijuana poses a real threat to individual health and social welfare and had upheld criminal penalties for possession and distribution even where such penalties may infringe to some extent on the free [**49]  exercise of religion."); United States v. Middleton, 690 F.2d 820, 825 (11th Cir. 1982), quoting Leary v. United States, 383 F.2d 851, 860-61 (5th Cir. 1967) ("It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes.")

The parties in this case have presented a great deal of evidence on the issue of whether the United States has a compelling interest in prohibiting the UDV's religious use of hoasca. Of course, regardless of what this evidence might suggest regarding the dangers associated with hoasca, the Court cannot ignore that the legislative branch of the government elected to place materials containing DMT in Schedule 1 of the CSA, reflecting findings that substances containing DMT have "a high potential for abuse," and "no currently accepted medical use in treatment in the United States," and that "there is a lack of accepted safety for use of [DMT] under medical supervision." 21 U.S.C. § 812(b)(1). Discussing another statute concerning controlled substances, the Supreme [**50]  Court once noted, "when Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more exposure to the problem might make wiser choices." Marshall v. United States, 414 U.S. 417, 427, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974). More recently, the Supreme Court's opinion in United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 493, 149 L. Ed. 2d 722, 121 S. Ct. 1711 (2001) suggested that courts should accord a great deal of deference to Congress's classification scheme in the CSA.

The Government argues that "Congress has made an affirmative statutory declaration that materials containing DMT ... are unsafe." Response, at 27-28. If this Court were employing a more relaxed standard to review the application of the CSA to the UDV's use of hoasca, it would be very reluctant to question this Congressional finding concerning DMT. However, the Plaintiffs are relying on RFRA, a more recent legislative enactment by Congress, to challenge the extension of the CSA's ban on DMT to the UDV's religious consumption of hoasca. Under RFRA, Congress mandated [**51]  that a court may not limit its inquiry to general observations about the operation of a statute. Rather, "a court is to consider whether the 'application of the burden' to the claimant 'is in furtherance of a compelling governmental interest' and 'is the least restrictive means of furthering that compelling governmental interest.' 42 U.S.C. § 2000bb-1(b) (emphasis added)." Kikumura, 242 F.3d at 962. In Kikumura, a case in which a federal prisoner was challenging a decision made by prison officials, the Tenth Circuit Court of Appeals noted that "under RFRA, a court does not consider the prison regulation in its general application, but  [*1255]  rather considers whether there is a compelling government reason, advanced in the least restrictive means, to apply the prison regulation to the individual claimant." Id.

RFRA requires that the Government "demonstrate[]" its compelling interest and its use of the least restrictive means to accomplish that interest. In enacting RFRA, Congress explicitly stated that "the term 'demonstrates' means meets the burdens of going forward with the evidence and of persuasion." 42 U.S.C. § 2000bb-2. [**52]  This Court concludes that the Government has fallen short of meeting its difficult burdens, which Congress requires. The Government has not shown that applying the CSA's prohibition on DMT to the UDV's use of hoasca furthers a compelling interest. n8 This Court cannot find, based on the evidence presented by the parties, that the Government has proven that hoasca poses a serious health risk to the members of the UDV who drink the tea in a ceremonial setting. Further, the Government has not shown that permitting members of the UDV to consume hoasca would lead to significant diversion of the substance to non-religious use. The Court bases its determinations on the following facts.***

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n8 The Tenth Circuit has very recently observed that "whether something qualifies as a compelling interest is a question of law." United States v. Hardman, 297 F.3d 1116, No. 99-4210, 2002 WL 1790584, at *8 (10th Cir. Aug. 5, 2002), citing Citizens Concerned About Our Children v. School Bel., 193 F.3d 1285, 1292 (11th Cir. 1999); Concrete Works of Colo., Inc. v. City and County of Denver, 36 F.3d 1513, 1522 (10th Cir. 1994). However, in this case, there does not seem to be a dispute between the parties over whether, in the abstract, the federal government has a compelling interest in protecting the health and safety of people in the United States. Rather, the parties have focused their arguments on the issue of whether the Government has met its very heavy burden of showing that applying the CSA to the UDV's consumption of hoasca furthers the Government's stated interests.


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a. HEALTH RISKS TO MEMBERS OF THE UDV

The consumption of hoasca tea plays a central role in the practice of the UDV religion. Decl. of Jeffrey Bronfman, Exh. A. to Pltf. Mot. for Prelim. Inj., at 13. Hoacsa is a sacrament in the UDV. Church doctrine instructs that members can fully perceive and understand God only by drinking the tea. Pltf. Exh. 21, Decl. of David Lenderts, at 4. UDV members drink hoasca only during regular religious services, held on the first and third Saturdays of every month and on ten annual holidays. Decl. of Bronfman, at 8. A church leader called a "directing mestre" generally conducts the service. Id. at 9. Ceremonies start at 8 p.m. and last for about four hours. Id. at 8-10. The mestre begins the service by distributing measured glasses of tea to each participant. Id. at 10. Activities during UDV services include the recitation of church law by selected congregants, the singing of sacred chants by the mestre, question-and-answer exchanges between the mestre and participants, and a period of religious teaching led by the mestre. Id. at 10.

Hoasca is brewed from two plants indigenous to the Amazon River Basin-Banisteriopsis caapi and Psychotria viridis.  [**54]  Pltf. Exh. 11, Decl. of Charles Grob, at 7. Psychotria contains dimethyltryptamine (DMT), a hallucinogenic chemical. Id. By itself, psychotria does not trigger an altered state of consciousness when taken orally, because monoamine oxidase (MAO) enzymes in the digestive system inactivate the DMT psychotria contains. Id. However, banisteriopsis contains harmala alkaloids, known as beta-carbolines, that inhibit MAO's and prevent the inactivation of DMT. Id.; Deft. Exh. ZZ, Rpt. of Sander Genser, at 6. Ingesting the combination of  [*1256]  psychotria and banisteriopsis allows DMT to reach levels in the brain sufficient to produce a significantly altered state of consciousness. Deft. Exh. ZZ, Rpt. of Genser, at 6.

Scientists have devoted little research to the physical and psychological effects of ceremonial hoasca consumption. Id. The lack of knowledge about hoasca, relative to many other substances, forms the core of the dispute between the parties in this case. The Plaintiffs' experts and the Government's experts have offered differing interpretations of preliminary data, conflicting views on the value of comparisons between hoasca and other hallucinogenic drugs, and [**55]  contrasting evaluations of whether certain findings signify risks associated with hoasca use. Ultimately, the Plaintiffs contend that evidence does not exist, to a reasonable degree of scientific certainty, to conclude that the UDV's religious use of hoasca carries any significant health risk. See, e.g., Hrg. Tr. at 207-08, testimony of Grob. The Government, in contrast, maintains that existing evidence suggests that the ingestion of hoasca poses substantial health concerns. See, e.g., Deft. Exh. ZZ, Rpt. of Genser, at 5.

During the evidentiary hearing, the Plaintiffs presented the testimony of Dr. Charles Grob, Professor of Psychiatry at the University of California, Los Angeles. In 1993, Dr. Grob led a team of researchers in conducting a study of the effects of hoasca use on UDV members in Brazil. The study compared fifteen long-term members of the UDV, who had drunk hoasca for several years, with fifteen control subjects who had never used hoasca. Pltf. Exh. 11, Decl. of Grob, at 9-10. The researchers administered personality tests, psychiatric interviews, neuropsychological tests, and physical examinations to all of the subjects in the study. In addition, the subjects in the experiment [**56]  group completed a hallucinogen rating scale questionnaire after they had participated in an hoasca ceremony. Researchers also conducted life story interviews with the members of the experimental group. Id.

The investigators reported their findings in a number of articles published in scientific journals. While acknowledging that the study was only preliminary, the researchers' overall assessment of the safety of hoasca use in the UDV was positive. Discussing the study, Dr. Grob stated that, despite its limitations, "our investigation did identify that in a group of randomly collected male subjects who had consumed ayahuasca for many years, entirely within the context of a very tightly organized syncretic church, there had been no injurious effects caused by their use of ayahuasca. On the contrary, our research team was consistently impressed with the very high functional status of the ayahuasca subjects." Pltf. Exh. 12, 2nd Decl. of Grob, at 1. Of particular interest to the researchers was that in the life story interviews, many of the experimental subjects reported that they had engaged in self-destructive behavior before joining the UDV and that their experiences in the UDV had [**57]  allowed them to lead responsible, meaningful lives. Pltf. Exh. 11, Decl. of Grob, at 12-13.

The Government has criticized the Plaintiffs' reliance on the 1993 hoasca study to show the safety of hoasca use. From a methodological standpoint, the Government's experts maintain, the hoasca study has many limitations. For example, the study employed a small sample size, the study included only male subjects, and the study provided no baseline data that researchers could use to compare information about subjects before and after participation in the hoasca rituals of the UDV. Deft. Exh. JJJ, Rpt. of Alexander Walker, at 6-8; Deft. Exh. ZZ, Rpt. of Genser at 6; Hrg. Tr. at 867-68, testimony of Genser;  [*1257]  Hrg. Tr. at 743, testimony of Lome Dawson.

The Government has also questioned whether long-time members of the UDV can be considered representative of UDV members in general. Dr. Alexander Walker, a Professor of Epidemiology at the Harvard School of Public Health, has expressed the view that selection bias undermined the value of the results generated through the hoasca study:

According to Dr. Grob and his coinvestigators, UDV adherents abstain from alcohol and other intoxicating substances,  [**58]  they maintain high standards of responsibility to family and society, they are diligent, and they are respectful of their church's leadership. In selecting long-term members of the UDV as their study group, the Hoasca Project team necessarily included persons who were able to conform to the church's precepts over extended periods. There was no similar requirement for stable, long-term, willing church attendance in the comparison group. By itself, this one omission ensured that the hoasca-consuming group would have a favorable psychological profile.

Deft. Exh. JJJ, Rpt. of Walker at 6. Dr. Lome Dawson, the Government's expert on religion, testified that restricting the sample to long-term, committed church members also creates methodological concerns because of problems that generally accompany the collection of conversion accounts in the sociology of religion. Dr. Dawson explained that:

Conversion accounts, for example, almost always involve some kind of a somewhat exaggerated statement of what their preconversion life was like in terms of the sinfulness, perhaps, of their life or the ways in which they engaged in harmful behavior or abused substances, as in this case.  [**59]  There is a tendency to exaggerate how bad one's life was before they joined the group. Then too, perhaps they also exaggerate how good life is now that they have joined the group or been involved with the group.

Hrg. tr. at 745-46. Dr. Dawson stated that a superior sample would include people who have belonged to the church for a short time and people who have left the church under a range of circumstances, in addition to long-time church members. Id. at 746-47.

In addition to pointing out the methodological limitations of the 1993 hoasca study, the Government has articulated a number of concerns regarding the UDV's ceremonial consumption of hoasca. Dr. Sander Genser, n9 one of the Government's experts, stated in his report that "existing studies have raised flags regarding potential negative physical and psychological effects" of hoasca. Deft. Exh. ZZ, Rpt. of Genser, at 8. Some concerns derive from potential dangers associated with DMT, hoasca's main psychoactive component. For example, Dr. Genser has cited a study in which Dr. Rick Strassman administered intravenous DMT to test subjects. Two subjects experienced such a high rise in blood pressure that Dr. Strassman determined [**60]  that researchers should not include individuals with a history of hypertension in studies of DMT. Id. Another of the subjects in Dr. Strassman's study suffered a recurrence of depression. Id.

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n9 Dr. Genser is the Chief of the Medical Consequences Unit of the Center on AIDS and Other Medical Consequences of Drug Abuse at the National Institute on Drug Abuse, National Institutes of Health.


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According to Dr. Genser, concerns about the safety of hoasca stem not just from information known about other forms of DMT, but also from information known about other types of hallucinogenic substances.  [*1258]  Id. Dr. Genser has listed a broad range of adverse neuropsychological effects that have been linked to hallucinogen use. For instance, Dr. Genser has described some dangers associated with lysergic acid diethylamide (LSD), another hallucinogenic substance that shares pharmacological properties with DMT. Id. at 8-10 Particularly in individuals with pre-existing psychopathology, LSD may produce prolonged psychotic reactions. Id.  [**61]  at 9. Users of LSD may also be at risk for developing persisting perpetual disorder, known as "flashbacks," in which individuals reexperience the effects of LSD at times when they are not actually under the influence of the drug. Id. at 9-10.

The Plaintiffs dispute that evidence concerning intravenous DMT and evidence about hallucinogens other than DMT represent strong indications that the UDV's ceremonial hoasca use carries significant risk. With respect to the studies of intravenous DMT, the Plaintiffs' experts have emphasized that differences in the method of the administration of DMT translate into important differences in how the drug is experienced. Intravenous DMT has a much more rapid onset, and its effects are of much shorter duration, than hoasca taken orally. Dr. David Nichols, Professor of Medicinal Chemistry and Molecular Pharmacology at Purdue University, has observed that "orally ingested hoasca produces a less intense, more manageable, and inherently psychologically safer altered state of consciousness." Pltf. Exh. 24, Decl. of Nichols, at 7; see also Pltf. Exh. 12, 2nd Decl. of Grob, at 2. Further, Dr. Nichols has questioned whether Strassman's study suggests that [**62]  even intravenous DMT causes hypertension. At the evidentiary hearing, Dr. Nichols testified that "if you look at the pharmacology of DMT, there aren't serotonin site receptors in the heart and cardiovascular system that would normally produce life-threatening cardiovascular changes," and that in the case of the hypertension reported by Strassman, "one could argue that that response was related to the stress of the high dose." Hrg. Tr. at 1145.

Regarding the Government's evidence about the risks presented by other hallucinogens, such as LSD, the Plaintiffs have noted the lack of evidence connecting hoasca use with flashbacks. Dr. Grob has stated that "my medical colleagues in the UDV inform me that they have never received a report of persisting perpetual disorder ("flashbacks") induced by ayahuasca," and that "I have also heard of no such report from any other source." Pltf. Exh. 12, 2nd Decl. of Grob, at 3. As to other negative neuropsychological effects identified with the use of hallucinogenic drugs, the Plaintiffs have pointed to distinctions between hoasca and other hallucinogens that may reduce the possibility that hoasca would induce adverse reactions. The Plaintiffs note,  [**63]  for example, that the duration is shorter and the intensity more mild for hoasca experiences, as compared to some other classic hallucinogens. Pltf. Exh. 12, 2nd Decl. of Grob, at 3.

Further, the Plaintiffs emphasize that the circumstances under which an individual takes a hallucinogenic drug, the "set and setting," are crucial in determining the kind of experience that the individual has. See, e.g., Hrg. Tr. at 1182-83, testimony of Nichols. Referring to the 1993 hoasca study, Dr. Grob has commented that "it was the consistent observation by members of our research team that the UDV had constructed a ceremonial structure for their ritual use of hoasca that optimized safety and minimized the likelihood of adverse consequences." Pltf. Exh. 11, Decl. of Grob, at 5. The Plaintiffs call attention to the fact that the UDV employs a range of measures- from screening new church members for psychological instability to observing members for problems during  [*1259]  church ceremonies- to protect the safety of individuals ingesting hoasca. Id.

Along with evidence about DMT and other hallucinogens in general, the Government has presented evidence more specific to the hoasca ingested in the UDV. Both [**64]  parties have devoted a substantial amount of attention to a potential danger acknowledged even by the Plaintiffs-adverse drug interactions. This danger stems from the presence of the component of hoasca contributed by banisteriopsis- beta carbolines. Deft. Exh. ZZ, Rpt. of Genser, at 11. Individuals who drink hoasca while on certain medications may be at increased risk for developing serotonin syndrome, a condition characterized by excessive levels of the neurotransmitter serotonin. For example, several types of antidepressants, such as Prozac, contain selective serotonin reuptake inhibitors (SSRI's). SSRI's trigger the release of serotonin or prevent its reuptake. Hrg. tr. at 253, testimony of Grob. Monoamine oxidase inhibitors interfere with the metabolization of serotinin, and as described above, hoasca has MAO-inhibiting effects. Pltf. Exh. 11, Decl. of Grob, at 6. Drinking hoasca while on an SSRI might create a dangerous interaction, because the MAOI's in hoasca would hinder the metabolization of the greater levels of serotonin made available through the use of the SSRI. In discussing the risk of serotonin syndrome, the Government's experts noted that "irreversible" MAO inibitors-  [**65]  those that "bind to an MAO molecule and destroy its function forever"- may interact harmfully with a number of medicines, as well as with a chemical found in some common foods. Govt. Exh. ZZ, Rpt. of Genser, at 12. Irreversible MAO inhibitors are often present in anti-depressant medications. Id.

Although the Plaintiffs concede that adverse drug interactions represent a risk connected with hoasca use, they dispute that the risk is so substantial as to require the Government to prohibit the religious consumption of the tea. The Plaintiffs' experts have cited the following reasons for arguing that the Government has overstated the danger of adverse drug interactions involving hoasca. First, the Plaintiffs maintain that hoasca does not contain irreversible MAO inhibitors, the type associated with the most severe drug interactions. Dr. Grob has written that that "unlike pharmaceutical MAOI's ... the MAOI effect in ayahuasca is relatively mild, with comparatively lesser degrees of risk for dangerous interactions." Pltf. Exh. 12, 2nd Decl. of Grob, at 2. Dr. Grob has indicated that in the cases of reactions between ayahuasca and SSRI's with which he is familiar, "the duration of the [**66]  event was relatively brief when compared to more severe cases of serotonin syndrome caused by combinations of SSRIs and pharmaceutical irreversible MAOIs." Id. Similarly, Dr. Nichols testified for the Plaintiffs that "the possibility of physiological consequences with the reversible MAO inhibitors is much reduced when compared with the irreversible." Hrg. tr. at 1219.

Second, the Plaintiffs have placed great emphasis on the attention that UDV leadership has paid to the danger of adverse drug interactions. Dr. Grob and his colleague, Dr. J.C. Callaway, first identified the potential for negative interactions between hoasca and SSRI's in a scientific article published in 1998. Pltf. Exh. 12, 2nd Decl. of Grob, at 2; Callaway, J.C. & Grob, C.S. (1998). Ayahuasca Preparations and Serotonin Reuptake Inhibitors: A Potential Combination of Severe Adverse Interaction. J. Psychoactive Drugs, 30. Deft. Exh. KK. Dr. Grob has testified that the UDV has been receptive to concerns about adverse drug reactions. He wrote in his second declaration that "following discussions of our concerns with physicians of the UDV, all prospective participants in ceremonial hoasca sessions  [*1260]  have been carefully [**67]  interviewed to rule out the presence of ancillary medication that might induce adverse interactions with hoasca." Pltf. Exh. 12, 2nd Decl. of Grob, at 6. See also Hrg. tr. at 254.

Finally, the Plaintiffs have attempted to downplay the risk of adverse reactions posed by hoasca use, contending that serotonin syndrome is quite rare and is not experienced by all individuals who ingest hoasca while taking SSRI's. Hrg. tr. at 442-46, testimony of Glaucus Brito. The Plaintiffs have portrayed the risk of serotonin syndrome associated with hoasca as falling within the normal spectrum of concerns with drug interaction. They point out that Government expert Dr. Genser stated, during the hearing, that he would be more troubled by a person drinking grapefruit juice while taking a contraindicated drug than by a UDV member taking hoasca in a ceremonial context. Hrg. tr. at 964.

The Government has identified other indications that the UDV's hoasca use is not as safe as the Plaintiffs claim. Data collected by DEMEC, the medical-scientific department of the Brazilian UDV, raises particular concern. Since 1996, DEMEC has gathered reports of cases of psychological problems experienced by church members [**68]  from the three most heavily populated regions of Brazil. Hrg. tr. at 425-26, testimony of Brito. The organization's records include retrospective reports of cases that had occurred in the five years prior to 1996. Id. at 425. The DEMEC documents disclose that there have been 24 incidents of psychosis among users of hoasca in church ceremonies. Dr. Glaucus Brito, the director of DEMEC, testified that "out of these 24 cases, we have one in which the tea acts as a trigger with no prior occurrences, and then we have seven in which the tea acted as a resharpening mechanism for ... a prior mental condition that was not identified, but it was identified during the course of the investigation by the psychiatrist." Hrg. tr. at 424-25. Dr. Brito went on to explain that "out of these 24, there were 11 in which there was no relationship whatsoever between the event and the use of the tea." Id. at 425.

Dr. Genser has stated that the information contained in the DEMEC reports reinforces his belief that hoasca use in the UDV presents a significant risk of psychotic incidents. Dr. Genser testified that among the range of possible physical and psychological effects that could be associated with hoasca [**69]  use, "psychosis is definitely of most concern," in terms of both severity and likelihood. Hrg. tr. at 960-61. Even if the percentage of psychotic episodes reported among UDV members was on the low end of the average range for the general Brazilian population, he explained:

I would still be concerned because from all of the descriptions I have read, Dr. Brito's deposition, the UDV, the DEMEC documents, Mr. Bronfman's deposition, the UDV screens out a certain number of people with vulnerabilities to psychosis and provides an environment that tends to encourage healthier behaviors and healthier life-styles and provides a level of social connectedness for the individual that- it's generally greater than the average member of the general population. All of those factors would, I believe, tend to lower the expected incidence of psychosis a good bit below that in the general population. So the fact that the incidence of psychosis is still within range of the general population, in combination with the fact that a number of those incidents reported are attributed to the hoasca really strengthened my concern about the hoasca.

Hrg. tr. at 862-63. Dr. Genser also stated that he [**70]  would expect that cases of psychosis  [*1261]  would be underreported to the DEMEC monitoring system. Hrg. tr. at 861.

The Plaintiffs deny that available evidence suggests that hoasca use is likely to cause severe psychotic events. Discussing the DEMEC documents, Dr. Grob commented that many of the reported psychiatric problems "were relatively transient in nature and resolved." Hrg. tr. at 251-52. In the "few cases of very serious mental illness," the individuals "appeared to have ... long-standing problems insofar as their mental function." Id. at 252. Dr. Grob doubted whether hoasca was a "key precipitant" in several of the reported episodes- "in many of these cases the hoasca seemed to be just coincidental to it." Id. In addition, Dr. Grob noted that "given how many people participate and how many years they have been trying to collect such data," the reports represent "a very small number of cases." Id. at 252-53.

The Plaintiffs presented the testimony of Dr. Brito in support of their argument that the rate of reported psychosis among UDV members in Brazil does not exceed the rate of psychosis in the general population. About one percent of the world's population is believed to be schizophrenic.  [**71]  Hrg. tr. at 439. The DEMEC records were generated from observations of about 1,400 to 1,500 individuals participating in UDV ceremonies. Id. at 438. If 13 of these people experienced psychotic episodes linked in some way to hoasca, this would represent only .9 percent of the observed participants. Id. Dr. Brito stressed that the figure of .9 percent is based on conservative methods of calculation. Id. at 439-440. If the 1,400 people observed were drinking the tea twice a month during the years for which data was collected, calculating the number of psychotic events per number of hoasca exposures would result in a smaller percentage. Id.

The Government argues that research on UDV members suggests that hoasca may have negative physical effects as well as negative psychological effects. During the 1993 hoasca study, investigators found that eight of the fifteen subjects in the test group had cardiac irregularities, while only one subject in the control group had such irregularities. Hrg. tr. 504-05, testimony of Brito. The Plaintiffs counter that cardiac alterations detected are not necessarily linked with heart disease. For example, four of the eight test subjects had bradychardia,  [**72]  or slow heartbeat, a condition that is associated with young athletes as well as people with certain types of heart disease. Hrg. tr. at 504, testimony of Brito; Hrg. tr. at 878-79, testimony of Genser.

In discussing his concerns about hoasca use in his expert report, Dr. Genser cited a recent study conducted by Jordi Riba. J. Riba, et al. (2001). Subjective Effects and Tolerability of the South American Beverage Ayahuasca in Healthy Volunteers. Psychopharmacology, 154, 85-95. Deft. Exh. BBB. The researchers administered encapsulated ayahuasca, in increasing doses, to six volunteers. Riba and his colleagues reported that "one volunteer experienced an intensely dysphoric reaction with transient disorientation and anxiety at the medium dose and voluntarily withdrew from the study." Id. The Plaintiffs have questioned the applicability of the Riba study to an evaluation of the risks presented by the UDV's ceremonial consumption of hoasca. The Plaintiffs have observed that the concentrations of DMT and beta-carbolines in the ayahuasca capsules administered by Riba were stronger than the concentrations in the hoasca seized from the UDV. See Hrg. tr. at 871. The Plaintiffs also emphasize [**73]  that the Riba study did not take place within a religious context, and that the anxiety experienced by the one test subject was only transient in nature. Id. at 875-76.

 [*1262]  In considering the evidence submitted by the parties, this Court has been struck by the closeness of the questions of fact presented in this case. The Court has no doubt that in other contexts, the risks that the Government has identified would be sufficient to support a decision against allowing individuals to consume hoasca pending further study of the substance. Indeed, even the scientific experts testifying on behalf of the Plaintiffs appear to recognize the need for additional research into the health consequences of ceremonial hoasca use.

However, in this case, the Plaintiffs have raised a claim under a powerful statute passed by Congress specifically to override a ruling by the Supreme Court of the United States. The Government concedes, at this stage, that application of the CSA to the UDV's use of hoasca imposes a substantial burden on the practice of the Plaintiffs' religion. By passing RFRA, Congress required the Government to justify this imposition with a showing of a compelling government interest. As [**74]  to the subject of health risks, the evidence presented by the parties is, essentially, in equipoise. This Court cannot find, in light of the closeness of the evidence, that the Government has successfully carried its onerous burden on the issue of health risks to UDV members.

b. POTENTIAL FOR DIVERSION TO NON-RELIGIOUS USE

The Government alleges that it has a compelling interest not just in protecting the physical and psychological health of the UDV members who wish to consume hoasca, but also in ensuring of the safety of individuals who might ingest hoasca in a non-ceremonial environment. If the UDV were allowed to use hoasca in its church services, the Government argues, the tea could be diverted to potentially harmful uses in non-religious, unsupervised settings. In contrast, the Plaintiffs take the position- as articulated by their expert witness, Dr. Mark Kleiman- that "there is no currently available evidence to suggest that such [diversionary] effects, were they to occur, would be large." Pltf. Exh. 16, decl. of Kleiman, at P 29.

The Government's analysis hinges on the factual premise that the hoasca used by the UDV would be vulnerable to diversion. To help establish this [**75]  premise, the Government presented the expert opinions of Terrance Woodworth, Deputy Director of the Drug Enforcement Administration's Office of Diversion Control. Mr. Woodworth identified "several factors that are relevant to the assessment of a controlled substance's potential for diversion," including "the existence of an illicit market for the substance, ... the existence of 'marketing' or publicity about the substance, and the form of the substance." Deft. exh. ZZZ, Rpt. of Terrance Woodworth, at 3. In addition, Mr. Woodworth stated, "[a] substance's potential for diversion is also affected by the opportunity for, and the cost of, diverting the substance, ... the level of control placed upon the substance, the form of the substance, and the degree to which the substance is in movement from place to place." Id. at 3-4.

The Government contends that the extent of the illicit market for hoasca would be determined, in large part, by whether hoasca has a significant potential for abuse. Dr. Donald Jasinski, one of the Government's expert witnesses, addressed this question from the pharmacological standpoint. n10 He expressed the opinion that the risk of abuse associated with hoasca [**76]  is substantial. He supports his conclusion by pointing first to evidence about the reinforcing effects of DMT and hoasca. Positive reinforcing effects "are the transient  [*1263]  alterations in mood, thinking, feeling, and perceptions produced by [a] drug," and these "effects include elevation in mood, pleasant thoughts, feelings of well being and relation, and perceptions that surroundings were more pleasant." Deft. Exh. VVV, Rpt. of Jasinski, at 7-8. These positive effects, called "euphoria," are the primary factors leading individuals to begin using, and to continue to use repeatedly, a drug of abuse. Id.

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n10 Dr. Jasinski is a Professor of Medicine at the Johns Hopkins School of Medicine.


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Dr. Jasinski noted that research on intravenous DMT indicates that the substance produces euphoric effects. In Strassman's study, the investigators "described the onset of psychological effects within two minutes with effects completely resolved within 30 minutes with transient anxiety common, replaced by euphoria." Deft. Exh. VVV,  [**77]  Rpt. of Jasinski, at 9. To the extent that preliminary research has been performed on ayahuasca, it appears that the substance induces effects similar to those created by DMT, "although the effects are slower in onset, milder in intensity, and longer in duration." The reported effects of ayahuasca "include pleasant feelings and elevations in mood as well as dysphoric (i.e., anxiety-producing) changes." Id.

Dr. Jasinski discussed not only the effects which suggest that hoasca would be subject to abuse, but also some effects which might seem to limit hoasca abuse. In particular, hoasca consumption often causes nausea and vomiting. While acknowledging that these effects may act as a deterrent to some individuals, Dr. Jasinski observed that it is unclear how many users experience nausea after taking hoasca. Hrg. tr. at 997. Further, Dr. Jasinksi pointed out, negative effects of substances do not necessarily outweigh the positive effects to the extent that potential users are completely deterred from taking the substances. Deft. Exh. VVV, Rpt. of Jasinski, at 9-10. In the case of ayahuasca, indigenous people in South America have ingested the substance for centuries despite its association [**78]  with nausea and vomiting. Hrg. tr. at 999.

Dr. Jasinski stated that another source of evidence about the abuse potential of ayahuasca is information known about LSD, a related drug. DMT produces pharmacological effects similar to those produced by LSD. Although there are some differences between LSD and DMT, "for the purpose of assessing abuse potential ... the similarities ... outweigh the differences," and "none of these differences necessarily detract from the abuse potential of DMT." Deft. Exh. VVV, Rpt. of Jasinski, at 12. Dr. Jasinski believes that DMT's pharmacological similarity to LSD, a drug recognized to have abuse potential, lends support to his opinion that ayahuasca has susbtantial abuse potential.

While Dr. Jasinski focused on ayahuasca's abuse potential from a pharmacological perspective, Mr. Woodworth testified about patterns of drug use in the United States that indicate that ayahuasca carries a significant potential for abuse. During the evidentiary hearing Mr. Woodworth cited, for example, National Household Survey on Drug Abuse results showing that hallucinogen use in this country has risen substantially in recent years. Hrg. tr. at 1388; Deft. Exh. CCCC. Mr.  [**79]  Woodworth expressed the opinion that "the existence of the well-documented increasing interest in and demand for hallucinogens greatly increases the potential for abuse- and consequently diversion- of any substance having hallucinogenic qualities." Deft. Exh. ZZZ, Rpt. of Woodworth, at 4.

Mr. Woodworth cited several reasons, in addition to hoasca's abuse potential, for believing that there would be a demand for hoasca in the illicit market. Advertisements for hoasca on the internet reflect growing interest in the drug, he testified.  [*1264]  Hrg. tr. at 1392; Rpt. at 5; Exh. EEEE. Increased publicity will, in turn, generate even more interest. Rpt. at 5. Hoasca use in Europe, often a helpful indicator for determining the possibility of the diversion in the United States, has risen substantially in recent years. Id. Mr. Woodworth observed that hoasca's form- a tea- might contribute to the substance's draw. He reasons that "drinking a cup of tea may appear more appealing to some abusers than chewing a dried plant material, as is the case with peyote, or shooting up, smoking, or snorting, as is done with many other substances of abuse." Id. at 5-6.

Mr. Woodworth attributes the relatively low [**80]  level of ayahuasca abuse in the United States, at the present time, to the lack of availability of the plant components in this country. Id. at 6. Mr. Woodworth explained that if the UDV is permitted to import hoasca for their religious ceremonies, the greater physical presence of the substance in the United States will increase the likelihood of diversion and abuse. Id. Further, the international transportation process itself will expose the tea to illicit diversion. Controlled substances shipped in international commerce are particularly vulnerable to diversion, whether through theft, loss, or fraud. Id. at 6-7. Controls imposed by the country of origin may help reduce the risk of diversion, Hrg. tr. at 1401, but in this case, the Brazilian government does not carefully regulate the UDV's production of ayahuasca. Hrg. tr. at 1403.

The Government has suggested that there are specific characteristics of the UDV that indicate that the hoasca shipped to the church would be prone to illegal diversion. For example, Mr. Woodworth noted at the evidentiary hearing that the federal government has established a cooperative, working relationship with the Native American Church in order to minimize [**81]  the diversion of peyote. However, Mr. Woodworth doubts whether the government could build a similar relationship with the UDV:

... based on their lack of candor with regard to what has been brought in for the last ten years. They have never contacted DEA. They have never attempted to get registered with DEA. They have never tried to have hoasca exempted from controlled status. And in the seizures, the documentation clearly was either disguised or mislabeled.

Hrg. tr. at 1424. The Government further supported this argument through the introduction of exhibits in the nature of UDV correspondence stressing the need for confidentiality about church sessions, and shipping forms in which UDV leaders in the United States listed hoasca as "herbal extract." See, e.g., Deft. Exhs. NNNNN and RRRRR.

The Plaintiffs dispute the fundamental premises of the Government's arguments on the diversion issue. They maintain, first, that hoasca does not carry the significant potential for abuse that the Government attributes to the substance. Dr. Kleiman, the Plaintiffs' expert, takes the position that demand for hoasca would be relatively low, because of negative side effects associated [**82]  with the substance and because of the availability of substitutes for hoasca. n11 Hrg. tr. at 680. Dr. Kleiman disagrees with Dr. Jasinski about the deterrent effect of hoasca's nauseant properties. Dr. Kleiman has written that "while many drug abusers tolerate a variety of inconveniences and discomforts associated with the drugs they take and the ways in which they take them, it is not  [*1265]  reported that drug abusers as a class, or users of hallucinogens in particular, enjoy nausea or vomiting." Pltf. Exh. 16, Decl. of Kleiman, at P 21. Dr. Kleiman explained that individuals using hallucinogens may be even less inclined to tolerate nausea than users of other types of drugs, by observing:

According to the research literature, hallucinogenic substances, including DMT, score much lower on scales measuring reinforcement, and have much less tendency to create dependency, than opiates, such as heroin. That is, those exposed to hallucinogens once display far less motivation to experience second and subsequent doses than those exposed to opiates, and a far smaller proportion of them develop drug dependency as defined by accepted clinical criteria ("addiction"). This would suggest that [**83]  a much smaller proportion of hallucinogen users than of opiate users would be so strongly driven to seek out the drug experience as to neglect the presence of side-effects.

Id. at P 22.

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n11 Dr. Kleiman is a Professor of Policy Studies at the University of California, Los Angeles.


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Dr. Kleiman also stressed that individuals interested in experiencing the effects of oral DMT would not necessarily demand the particular tea preparation employed in UDV ceremonies. Rather, "any preparation that included DMT and a sufficient quantity of any monoamine oxidase inhibitor would suffice." Id. at P 16. Plants that contain DMT and plants that contain harmala alkaloids are available in the United States. Id. at P 18. Some of the alternative preparations combining DMT and haramala alkaloids do not induce nausea in the way that hoasca does. Dr. Kleiman thus believes that "the widespread availability of pharmacologically equivalent substitutes, some of them with fewer unwanted side-effects and less apparent legal risk,  [**84]  would greatly reduce the motivation to divert the sacramental material for purposes of drug abuse." Id. at P 25.

Dr. Kleiman also mentioned other factors that would tend to prevent widespread diversion of hoasca from the UDV. First, the United States UDV is a very small church and would not be importing huge quantities of tea from Brazil- only about 3,000 doses per year. Dr. Kleiman commented that, "even if, by some happenstance, all 3,000 doses were diverted and you would ask me as a drug policy expert: Did a big disaster just happen or not, I would say no, not a very big disaster." Hrg. tr. at 696.

Second, the relative "thinness of the potential market" for hoasca would reduce the likelihood of diversion that might occur with widely-used drugs. Hrg. tr. at 697. A casual thief in possession of a pharmaceutical cocaine shipment would have little trouble locating a buyer. In contrast, an individual would probably need to have sonic specific knowledge about the extremely limited hoasca market in order to distribute the tea. According to Dr. Kleiman, the nature of the hoasca market may thus discourage potential diversion of the tea to illicit use. Hrg. tr. at 698-99.

Third, the bulky [**85]  form of hoasca would deter diversion. The 3,000 doses of tea that the UDV might import per year would produce several hundred liters of liquid. Dr. Kleiman testified that there is an inverse relationship between the volume of a substance and its susceptibility to theft. During the evidentiary hearing, he stated that "the ease of stealing goes up as the volume goes down. The larger the volume, the harder something is to steal." Hrg. tr. at 718.

Finally, Dr. Kleiman emphasized that the UDV has a strong motivation for keeping the hoasca supply from being diverted. The tea "is considered a sacrament within the UDV, and its use outside the ceremonial religious context of the church is considered by members of the UDV to be sacrilegious."  [*1266]  Pltf. Exh. 16, Decl. of Kleiman, at P 26. Dr. Kleiman believes that the UDV's interest, under church doctrine, in preventing hoasca from being used improperly would make it likely that the church would cooperate with governmental authorities to track down any tea that is diverted. Hrg. tr. at 703.

As on the issue of health risks to UDV members, the parties have presented virtually balanced evidence on the risk of diversion issue. n12 Again, this Court [**86]  finds that the Government has failed to meet its difficult burden of showing a compelling interest in preventing the diversion of hoasca to illicit use.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n12 The Court notes that the specificity of Dr. Kleiman's analysis may even tip the scale slightly in favor of the Plaintiffs' position.


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c. 1971 CONVENTION ON PSYCHOTROPIC SUBSTANCES

Upon its initial review of the parties' briefs, the Court believed that the Government's strongest arguments for prohibiting the UDV's use of hoasca stemmed from concerns about the safety of drinking the tea in a religious setting and the problems that might emerge if hoasca were diverted to use in non-religious settings. For that reason, the Court asked the parties to present evidence on these two subjects during the hearing held in October and November, 2001. However, the Government has alleged a third compelling interest in addition to those addressed at the hearing. According to the Government, the United States must apply the CSA's ban on DMT to the UDV's use of hoasca in order [**87]  to adhere "to an important international treaty obligation." Response, at 16.

The United Nations Convention on Psychotropic Substances, represents an international effort "to prevent and combat abuse of [psychotropic] substances and the illicit traffic to which it gives rise." United Nations Convention on Psychotropic Substances, 1971, opened for signature February 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, at Preamble. The treaty was opened for signature in 1971, entered into force in 1976, and was ratified by the United States in 1980. Decl. of Robert Dalton, Exh. B. to Deft. Response, at P 3. More than 160 nations are party to the treaty, including Brazil. The treaty adopts a scheduling system for substances similar to that found in the CSA. DMT is listed in Schedule I, the category subject to the strictest controls. Article 7 provides that parties to the treaty "prohibit all use" of Schedule I substances, "except for scientific and very limited medical purposes." Article 7(a). Parties must also "prohibit export and import" except under very restrictive conditions. Article 7(f).

The Government asserts that the Convention on Psychotropic Substances requires the [**88]  United States to ban the UDV's ceremonial consumption of hoasca. Article 3(1) of the treaty makes clear that "a preparation is subject to the same measures of control as the psychotropic substances which it contains." The treaty defines a preparation as "any solution or mixture, in whatever physical state, containing one or more psychotropic substances." Article 1(f)(i). The Government appears to contend that even if the treaty's prohibition on DMT did not include hoasca tea, the provisions regarding "preparations" clearly extend the treaty's coverage to hoasca.

The Government notes that the treaty permits exceptions for the religious use of drugs, but argues that those exceptions are not applicable to the UDV. Article 32(4) reads:

 [*1267]  A State on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites, may, at the time of signature, ratification or accession, make reservations concerning these plants, in respect of the provisions of article 7, except for the provisions relating to international trade.

The United [**89]  States could not have relied on this provision to justify permitting the religious use of hoasca because, among other reasons, the plant ingredients of hoasca are not indigenous to this country. The Government argues that the treaty's specific allowance for religious exceptions under particular circumstances implies that the treaty does not permit other exceptions for religious use of scheduled substances.

Abiding by the terms of the Convention on Psychotropic Substances is, the Government maintains, a compelling interest. In general, principles of international law instruct that nations must honor the obligations imposed through treaties. For example, the Vienna Convention on the Law of Treaties states that "every treaty in force is binding upon the parties to it and must be performed by them in good faith." Decl. of Dalton, Exh. B. to Deft. Response, at P 10. The Government takes the position that the United States has a particular interest in adhering to the Convention on Psychotropic Substances. The United States calls on the treaty to elicit cooperation from other nations in fighting international drug trafficking. According to the Government, breaching the obligations set forth [**90]  in the Convention would undermine the United States' efforts to encourage other nations to comply with the agreement, and might interfere with the willingness of other nations to form treaties with the United States in the future. Id. at P 12.

In responding to the Government's position, the Plaintiffs challenge whether the Convention on Psychotropic Substances actually applies to hoasca. The Plaintiffs point out that there are several indications that plants containing scheduled hallucinogenic substances are not necessarily prohibited under the treaty. The Commentary on the Convention on Psychotropic Substances, published by the United Nations in 1976, suggests that the listing of a chemical component in the treaty does not imply that a plant containing that chemical is likewise banned. For example, the Commentary notes that:

Schedule I does not list any of the natural hallucinogenic materials in question, but only chemical substances which constitute the active principles contained in them. The inclusion in Schedule I of the active principle of a substance does not mean that the substance itself is also included therein if it is a substance clearly distinct from the substance [**91]  constituting its active principle. Neither the crown (fruit, mescal button) of the Peyote cactus nor the roots of the plant Mimosa hostilis nor Psilocybe mushrooms themselves are included in Schedule I, but only their respective active principles, mescaline, DMT and psilocybine.

Commentary, at 387. Elsewhere, the Commentary states that "plants as such are not, and- it is submitted- are also not likely to be, listed in Schedule I, but only some products obtained from plants." Id. at 385.

Under the interpretation of the Convention favored by the Plaintiffs, the treaty included a provision allowing nations to reserve some religious uses of indigenous plants so that parties could ensure that any scheduling of plants in the future  [*1268]  would not interfere with certain religious practices; the reservation provision was not inserted because plants are presently illegal under the treaty. The Commentary provides support for this analysis, noting that because there is a possibility "that the fruit of the Peyote cactus, the roots of Mimosa hostilis, Psilocybe mushrooms or other hallucinogenic plant parts used in traditional magical or religious rites will in the future be placed in Schedule [**92]  1," that parties could "make a reservation assuring them the right to permit the continuation of the traditional use in question." Id. at 387.

Certainly the United States Senate Committee on Foreign Relations, when it recommended the ratification of the Convention, seemed to hold the view that plants were not automatically covered through the listing of their chemical components. The Committee's report stated that:

Since mescaline, a derivative of the peyote cactus, is included in Schedule I of the Convention, and since the inclusion of peyote itself as an hallucinogenic substance is possible in the future, the Committee accepted the Administration's recommendation that the instrument of ratification include a reservation with respect to peyote harvested and distributed for use by the Native American Church in its religious rites.

S. Exec. Rept. No. 96-29, Convention on Psychotropic Substances, 96th Cong., 2d. Sess., at 4 (1980).

In addition, the Plaintiffs provide examples of how, in operation, the treaty seems to reflect the understanding that the listing of a hallucinogenic chemical does not imply the listing of a plant containing that chemical. While the United [**93]  States made a reservation for the use of peyote by the Native American Church within this country, under Article 32(4), it did not make a reservation to export peyote for use by religious groups in other countries. However, the United States apparently permits the exportation of peyote to Native American Church groups in Canada. See 37 Tex. Admin. Code §§ 13.81-87 ; Exh. T to Pltf. Reply (list of Canadian Native American Church organizations registered with the Texas Department of Public Safety.) Exportation of a Schedule I substance for other than scientific or medical purposes would appear to violate the Convention, in the absence of a reservation. The conduct of the parties to the Convention, concerning the export of peyote, therefore suggests that peyote is not a scheduled substance, although mescaline is.

The Plaintiffs present a very persuasive analysis as to why plants containing hallucinogenic chemicals are not necessarily covered within Schedule I of the Convention. As the Defendants have emphasized, though, and as this Court noted above, the treaty contains special provisions regarding preparations: "a preparation is subject to the same measures of control as the psychotropic [**94]  substance which it contains." Article 3(1). In applying the treaty to hoasca, it would be possible to conclude that even if Schedule I does not cover psychotria viridis- the plant component of hoasca that contains DMT- Schedule I does extend to hoasca tea under the treaty's "preparation" provision. To counter this proposition, the Plaintiffs have offered strong arguments concerning why, if the treaty does not extend to psychotria viridis, the treaty would not extend to a tea made from a combination of psychotria viridis and another plant.

First, the Plaintiffs rely on the statement in the Commentary to the Convention, quoted above, that "the inclusion in Schedule I of the active principle of a substance does not mean that the substance itself is also included therein if it is a substance clearly distinct from the substance  [*1269]  constituting its active principle." Commentary, at 387. The Plaintiffs maintain that hoasca is clearly distinct from DMT, just as psychotria viridis is, and that there are no indications that the tea-making process produces a chemical separation of DMT.

Second, the Plaintiffs point out that the Commentary appears to assume that infusions and beverages [**95]  made from plants containing hallucinogenic substances do not fall within Schedule 1. In noting that "neither ... the roots of the plant Mimosa hostilis nor Psilocybe mushrooms themselves are included in Schedule I, but only their respective active principles," the Commentary observes by footnote that "an infusion of the roots is used" to consume Mimosa hostilis, and that "beverages ... are used" to consume Psilocybe mushrooms. Commentary, at 387; nn. 1227-28.

Based on the analysis offered by the Plaintiffs, this Court finds that the 1971 Convention on Psychotropic Substances does not apply to the hoasca tea used by the UDV. n13 Therefore, the United States' interest in adhering to the Convention does not, in this case, represent a compelling reason for extending the CSA's ban on DMT to the UDV's ceremonial hoasca use.

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n13 This Court acknowledges that its conclusion that the Convention on Psychotropic Substances does not extend to hoasca, without explanation, may appear to conflict with its interpretation of a similar provision in the CSA. However, the Convention significantly differs from the CSA in that the Convention introduces on its face, through the reservation provision, the proposition that plants may receive different treatment than chemical components. Given this, the Court felt it appropriate to turn to the Commentary, which makes clear that, unlike the CSA, the scheduling of a hallucinogenic chemical in the Convention does not imply the scheduling of a plant that contains that chemical.


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2. LEAST RESTRICTIVE MEANS

Under RFRA, the Government must establish not only that a burden placed on an individual's religious practice "is in furtherance of a compelling governmental interest," but also that the burden "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b). In this case, the Court has concluded that the Government has failed to carry its heavy burden of showing a compelling government interest in protecting the health of UDV members using hoasca or in preventing the diversion of hoasca to illicit use. In addition, the Government has not demonstrated that prohibiting the UDV's ceremonial use of hoasca furthers an interest in adhering to the 1971 Convention on Psychotropic Substances, because the treaty does not appear to extend to hoasca. The Court thus does not reach the question of whether the Government has employed the least restrictive means of accomplishing its stated goals.

IV. REMAINING REQUIREMENTS FOR PRELIMINARY INJUNCTION

The Court has found that the Plaintiffs have demonstrated a substantial likelihood of success as to their RFRA claim. As this Court noted [**97]  in its discussion of the standard of review, parties seeking preliminary injunctions must show not only a substantial likelihood of success on the merits, but also that there will be "irreparable injury to the movant if the preliminary injunction is denied," that "the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction," and that "the injunction is not adverse to the public interest." Kikumura, 242 F.3d at 955.

With respect to the first of these other requirements, Tenth Circuit law indicates that the violations of the religious exercise  [*1270]  rights protected under RFRA represent irreparable injuries. In Kikumura, the Tenth Circuit observed that "courts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA." Id. at 963. In support of this proposition the Kikumura court quoted the Second Circuit, which has held that "although the plaintiff's free exercise claim is statutory rather than constitutional, the denial of plaintiff's right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily." Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). [**98] 

The Tenth Circuit's emphasis on the harms presented by the violation of religious rights, reflected in the Kikumura case, also informs this Court's conclusions regarding whether the Plaintiffs have met the remaining two requirements for preliminary injunction. This Court acknowledges that the Government has presented a great deal of evidence suggesting that hoasca may pose health risks to UDV members and may be subject to diversion to non-religious use. However, in balancing the Government's concerns against the injury suffered by the Plaintiffs when they are unable to consume hoasca in their religious ceremonies, this Court concludes that, in light of the closeness of the parties' evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the Plaintiffs' favor. Likewise, this Court believes that an assessment of whether a preliminary injunction would be adverse to the public interest must take into account the public's interest in the vindication of the religious freedoms protected under RFRA- a statute which Congress, as the representative of the public, enacted specifically to countermand a Supreme Court ruling. See, e.g., Elam Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997) [**99]  (stating in the context of a Constitutional claim that "the public interest ... favors plaintiffs' assertion of their First Amendment rights.") This Court thus concludes that the Plaintiffs have satisfied the requirements for preliminary injunction as to their RFRA claim.

V. CONCLUSION

The Plaintiffs have failed to establish a likelihood of success on the merits of their claims under Equal Protection principles, the Free Exercise of the First Amendment to the United States Constitution, canons of statutory construction, and the international law of comity. However, the Court has concluded that the Plaintiffs are likely to succeed on the merits of their claim under RFRA. In addition, the Plaintiffs have satisfied the other requirements for preliminary injunction on the basis of their RFRA claim.

This Court has scheduled a hearing on August 19, 2002 to discuss with counsel issues concerning the nature and implementation of the preliminary injunctive relief to which the Plaintiffs are entitled. The Court will address the Plaintiffs' APA argument at that time, as well as the Plaintiffs' contention that the Fourth and Fifth Amendments to the United States Constitution require the [**100]  Government to return to the UDV the hoasca confiscated by the Government.

IT IS THEREFORE ORDERED that:

1) The Plaintiffs' Motion for Preliminary Injunction (Doc. No. 10) is denied as to:

a) Their claim under the First Amendment to the United States Constitution;

b) Their claim that the CSA does not apply to hoasca;

c) Their claim that principles of international law require that the Government permit the UDV's hoasca use; and

d) Their claim under the Equal Protection Clause of the Fourteenth Amendment, made applicable to federal statutes by the  [*1271]  Due Process Clause of the Fifth Amendment.

2) The Plaintiffs' Motion for Preliminary Injunction is granted as to their claim under the Religious Freedom Restoration Act;

3) A hearing on the form of preliminary injunction is set for August 19, 2002 at 1:30 p.m.

James A. Parker

CHIEF UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

O CENTRO ESPIRITA BENEFICIENTE

UNIAO DO VEGETAL (a.k.a. Uniao do

Vegetal) (USA) ("UDV-USA"), a New Mexico

Corporation on its own behalf and on behalf

of all its members in the United States,

JEFFREY BRONFMAN, individually and as

President of UDV-USA, CHRISTINA

BARRETO, individually and as Secretary of

UDV-USA, FERNANDO BARRETO,

individually and as Treasurer of UDV-USA,

CHRISTINE BERMAN, MITCHEL

BERMAN, JUSSARA de ALMEIDA DIAS,

PATRICIA DOMINGO, DAVID

LENDERTS, DAVID MARTIN, MARIA

EUGENIA PELAEZ, BRYAN REA, DON

ST. JOHN, CARMEN TUCKER, and

SOLAR LAW, individually and as members

of UDV-USA,

Plaintiffs,

v.

CIV. No. 00-1647 JP/RLP

JOHN ASHCROFT, Attorney General of the

United States, DONNIE R. MARSHALL,

Administrator of the United States Drug

Enforcement Administration, PAUL H.

O'NEILL, Secretary of the Department of

Treasury of the United States, DAVID

IGLESIAS, United States Attorney for the

District of New Mexico, and JOHN

O'TOOLE, Resident Special Agent in

Charge of the United States Customs Service

Office of Criminal Investigation in

Albuquerque, New Mexico, all in their

official capacities,

Defendants.

MEMORANDUM OPINION AND ORDER

The Plaintiffs' Motion for Preliminary Injunction (Doc. No. 10), filed December 22,

2000, raised the following issues:

1.

Whether the federal government infringed Plaintiffs' rights under the Equal

Protection Clause of the Fourteenth Amendment to the United States

Constitution, made applicable to federal statutes by the Due Process Clause of the

Fifth Amendment, by selectively enforcing the Controlled Substances Act (CSA)

against Plaintiffs. In a Memorandum Opinion and Order filed February 25, 2002,

this Court ruled that the Defendants did not violate Plaintiffs' rights under the

Equal Protection Clause.

'

This Court recognizes that in addition to the claims discussed in this

Memorandum Opinion and Order, the Plaintiffs' Complaint and Motion for Preliminary

Injunction included a claim under the Administrative Procedure Act (APA), 5 U.S.C. § 701-706.

The APA grants courts the authority to "hold unlawful and set aside agency action, findings, and

conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; ... contrary to constitutional right, . . . [or] in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2). As the

Government observes, the Plaintiffs' APA claim is derivative- it hinges on the success of the

Plaintiffs' analyses of their other claims. The main significance of the APA claim at this stage of

litigation seems to relate to the type of relief that the Plaintiffs seek. The Plaintiffs maintained in

their brief in support of their Motion for Preliminary Injunction that the APA empowers this

Court to set aside the Government's decision that the Plaintiffs are subject to prosecution for

possessing hoasca and to order the Government to return the seized hoasca to the UDV.

The Plaintiffs' Complaint and Motion for Preliminary Injunction also raised claims under

the Fourth and Fifth Amendments to the United States Constitution. Under the Fourth

Amendment, the Plaintiffs argue that the Government lacked a legal basis to seize the hoasca

belonging to the Plaintiffs, and under the Fifth Amendment, the Plaintiffs argue that they were

deprived of their hoasca without due process of law. The Plaintiffs rely on their Fourth and Fifth

Amendment theories to maintain that they are entitled to the return of the hoasca. The Court

believes that, like the APA claim, these claims are derivative of the claims asserted by the

Plaintiffs that are discussed at great length in this Memorandum Opinion and Order.

Because the Plaintiffs' APA, Fourth Amendment, and Fifth Amendment claims primarily

concern questions about the type of relief the Plaintiffs seek, the Court will defer ruling on these

claims at this time.

2.

Whether, as Plaintiffs contend, several canons of statutory construction instruct

that the CSA's treatment of dimethyltryptamine (DMT) as a controlled substance

does not extend also to include hoasca as a controlled substance. The Court

rejects this argument and holds that the plain language of CSA chosen by

Congress clearly covers hoasca as a controlled substance.

3.

Whether by interpreting CSA to prohibit the Plaintiffs' use of hoasca, the

Defendants have violated Plaintiffs' rights under the Free Exercise Clause of the

First Amendment to the United States Constitution by restricting Plaintiffs'

religious practices, which focus on the use of hoasca. The Court concludes that

the Defendants have not infringed Plaintiffs' rights under the First Amendment

because Congress drafted and promulgated CSA as a neutral law of general

applicability and the burden it puts on Plaintiffs' practices does not violate the

First Amendment.

4.

Whether doctrines of international law direct that Defendants, as representatives

of the United States government, should per

hoasca. The Court rules that international law principles do not override

Congress' clear application of the CSA to any use of hoasca in the United States.

5.

Whether the Defendants have met the heavy burden, imposed by Congress on the

government through passage of the Religious Freedom Restoration Act (RFRA),

to prove that the GSA's restriction on Plaintiffs' religious practices regarding use

of hoasca furthers a compelling governmental interest through the least restrictive

means. The Court begins with the observation that Defendants, at this stage of

the Plaintiffs' ceremonial use of

this action, have explicitly conceded that Plaintiffs have established a prima facie

case under RFRA, and the Court concludes that, on the basis of the evidence

presented thus far, the government has failed to meet its high burden of proof,

entitling Plaintiffs to a preliminary injunction based on RFRA.

I. BACKGROUND

This case centers on a tea, called hoasca, brewed from two plants native to the Amazon

River Basin in South America. The consumption of hoasca plays a central role in the religious

ceremonies of the O Centro Espirita Beneficiente Uniao do Vegetal (UDV).' Founded in Brazil

in 1961, the UDV church blends Christian theology with traditional indigenous religious beliefs.

Church doctrine instructs that hoasca is a sacrament, and UDV members ingest the tea during

church services. About 8,000 people belong to the UDV in Brazil. In 1993, the UDV officially

established a branch of the church in the United States. The United States branch of the UDV,

headquartered in Santa Fe, New Mexico, has about 130 members.

The plants used to make hoasca do not grow in this country, and prior to 1999, UDV

leaders in the United States imported the tea from Brazil for use in church ceremonies. On May

21, 1999, the United States Customs Service seized a substantial quantity of hoasca from the

UDV in the United States. The federal government takes the position that the Controlled

Substances Act (CSA), 21 U.S.C. § 801, et seq., prohibits the possession and use of hoasca. One

of the plant components of the tea contains dimethyltryptamine (DMT), a hallucinogenic

chemical. Under the CSA, DMT is a "Schedule I" controlled substance and hence subject to

The term "hoasca" refers to the specific tea preparation used in the UDV.

"Ayahuasca" is a broader term that refers to a category of South American teas containing DMT

and beta-carbolines. Some witnesses quoted in this Memorandum Opinion and Order use the

terms "hoasca" and "ayahuasca" interchangeably.

4

strict controls. Although the United States has not filed any criminal charges stemming from

UDV officials' possession of hoasca, the government has threatened prosecution for future

possession of the tea. In light of the government's interpretation of the CSR's application to

hoasca, the UDV has ceased using the tea in the United States.

The Plaintiffs in the present action are the United States branch of the UDV, as well as

several church leaders and members in the United States. On November 21, 2000, the Plaintiffs

filed a Complaint for Declaratory and Injunctive Relief (Doc. No. 1), alleging violations of the

Religious Freedom Restoration Act, the First Amendment to the United States Constitution,

Equal Protection principles, the Fourth Amendment, the Fifth Amendment, the Administrative

Procedure Act, and international laws and treaties. In addition, the Complaint asserts that the

CSA does not apply to hoasca. On December 22, 2000, the Plaintiffs filed a Motion for

Preliminary Injunction (Doc. No. 10). This Court held a hearing on the Plaintiffs' motion

October 22 through November 2, 2001, during which the parties presented evidence and

arguments on a number of issues.

As previously noted, on February 25, 2002, the Court entered a Memorandum Opinion

and Order denying the Plaintiffs' Motion for Preliminary Injunction as to their Equal Protection

claim. This Memorandum Opinion and Order addresses the other grounds on which the

Plaintiffs base their Motion for Preliminary Injunction.

11.

STANDARD OF REVIEW

Under Tenth Circuit law, "[a] movant is entitled to a preliminary injunction if he can

establish the following: (1) a substantial likelihood of success on the merits of the case; (2)

irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury

to the movant outweighs the injury to the other party under the preliminary injunction; and (4)

the injunction is not adverse to the public interest." Kikumura v. Hut-ley, 242 F.3d 950, 955

(10th Cir. 2001). This Memorandum Opinion and Order focuses on the Plaintiffs' likelihood of

success on the merits of their First Amendment, RFRA, statutory construction, and international

law claims.

This Court recognizes that "[i]f the party seeking the preliminary injunction can establish

the last three factors ... then the first factor becomes less strict--i.e., instead of showing a

substantial likelihood of success, the party need only prove that there are `questions going to the

merits ... so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and

deserving of more deliberate investigation."' Prairie Band of Potawatomi Indians v. Pierce, 253

F.3d 1234, 1246-1247 (10th Cir.2001), quoting Federal Lands Legal Consortium v. United

States, 195 F.3d 1190, 1194 (10th Cir. 1999). However, given the breadth of the parties'

briefing in this case, and the extensiveness of the arguments and evidence presented at the

hearing, it seems appropriate to consider the substance of the Plaintiffs' claims at this time. The

Court's decisions in this Memorandum Opinion and Order will not foreclose the parties from

presenting additional evidence at a trial on the merits. For example, this Court understands that

the Government may wish to contest at a later time whether the Plaintiffs have established a

prima facie case under RFRA, and that the Plaintiffs may wish to develop a selective prosecution

argument.

III. DISCUSSION

A.

FIRST AMENDMENT CLAIM

The First Amendment to the United States Constitution states that "Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The

Supreme Court has observed that "[i]n addressing the constitutional protection for free exercise

of religion, [its] cases establish the general proposition that a law that is neutral and of general

applicability need not be justified by a compelling governmental interest even if the law has the

incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993), citing Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In contrast, a law that is not neutral

and is not generally applicable "must be justified by a compelling governmental interest and

must be narrowly tailored to advance that interest." Lukumi, 508 U.S. at 531-32.

While an evaluation of a free exercise claim typically begins by considering whether the

plaintiffs have shown that a governmental action substantially burdens their religious practices,

Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699 (1989), the Court need not

address that preliminary issue in this case. The Government does not contest, at this stage of

litigation, that its interpretation of the CSA which prohibits ceremonial hoasca use substantially

burdens the Plaintiffs' exercise of their religion. Therefore, this Court turns to the question of

whether the CSA is a neutral law of general applicability.

The Plaintiffs argue that the CSA "cannot be characterized as a neutral law of general

applicability," because the statute "provides a wide variety of exceptions, exemptions and

licenses permitting the use of controlled substances in non-religious settings." Reply, at 31. As

support for their argument that the CSA is neither neutral nor generally applicable, the Plaintiffs

point to the exemptions set forth in the statute for certain uses of controlled substances. For

example, 21 U.S.C. § 872(e) provides that the Attorney General "may authorize the possession,

distribution, and dispensing of controlled substances by persons engaged in research."

Elsewhere in the CSA, 21 U.S.C. §§ 822 and 823 outline procedures for the Attorney General to

use in registering entities that engage in the manufacture and distribution of controlled

substances for medical, scientific, research, and industrial purposes.

As the Government observes, the Plaintiffs' analysis seems to deviate from Supreme

Court and Tenth Circuit precedent regarding whether controlled substances laws are neutral and

generally applicable. In Smith, the Supreme Court considered an Oregon drug statute which

prohibited the possession of peyote, among other substances, and which contained no exception

for the religious use of controlled substances. The plaintiffs in Smith had been fired from their

jobs for consuming peyote in a ceremonial setting, and the state denied their applications for

employment benefits on the basis that the plaintiffs' dismissal stemmed from their use of a

controlled substance. The plaintiffs maintained that Oregon had violated their free exercise

rights by enforcing the statutory prohibition against peyote to restrict the plaintiffs' religious use

of the substance.

Rejecting the Smith plaintiffs' argument, the Supreme Court stated that its "decisions

have consistently held that the right of free exercise does not relieve an individual of the

obligation to comply with a `valid and neutral law of general applicability on the ground that the

law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."' Id. at 879,

quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, J., concurring in

judgment). The Government stresses that the Oregon law upheld in Smith provides exemptions

for the use of controlled substances similar to those outlined in the federal Controlled Substances

Act. O.R.S. § 475.125. Thus, according to the Government, "Smith itself effectively answers

Plaintiffs' claim that the medical, scientific, industrial, and research exemptions contained in the

Controlled Substances Act render the Act non-neutral and not generally applicable." Response,

at 39.

The Tenth Circuit relied on Smith in order to reach its decision in United States v.

Meyers, 95 F.3d 1475 (1996). In Meyers, a criminal defendant charged with marijuana offenses

under the federal Controlled Substances Act alleged that his adherence to the "Church of

Marijuana" required him to distribute the drug. The Tenth Circuit declined to accept Mr.

Meyers's argument that the CSR's prohibition of marijuana distribution violated his First

Amendment rights. The court held that "Meyers' challenge fails for the same reasons as the

respondents challenge in Smith failed, i.e., the right to free exercise of religion under the Free

Exercise Clause of the First Amendment does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability on the ground that the law

incidentally affects religious practice." Id. at 1481. The comments of the Meyers court reflect

an assumption that the CSA is a neutral, generally applicable law within the meaning of Smith.

The court stated, for example, that "when, as here, the challenge is to a valid neutral law of

general applicability, the law need not be justified by a compelling governmental interest."

Id.,

citing Lukumi Babalu Aye, 508 U.S. at 521 (emphasis added).

Given the opinions in Smith and Meyers, this Court believes that it has little leeway to

accept the Plaintiffs' argument that the CSA is not a neutral, generally applicable law. However,

the Plaintiffs contend that this case is distinguishable from Smith and Meyers. The Plaintiffs

maintain that Smith and Meyers are distinct from the present case in that the courts in Smith and

Meyers were not considering the issue of whether exemptions for scientific research and other

uses would render a drug law non-neutral or not generally applicable. In Smith and Meyers, the

parties raising First Amendment challenges to controlled substance laws were not contesting the

neutrality or general applicability of those laws. Instead, they were claiming that otherwise-valid

laws that incidentally burden the practice of a person's religion could violate that individual's

free exercise rights. See Smith, 494 U.S. at 878 (Observing that the plaintiffs "contend that their

religious motivation for using peyote places them beyond the reach of a criminal law that is not

specifically directed at their religious practice, and that is concededly constitutional as applied to

those who use the drug for other reasons"); Meyers, 95 F.3d at 1481 (Taking note of criminal

defendant's suggestion that even a neutral, generally applicable law must be justified by a

compelling government interest if it imposes a burden on religious conduct.)

This Court will therefore consider whether the CSAJs a neutral, generally applicable law

in light of the exceptions that it provides for research and other uses. The United States Supreme

Court examined the concepts of neutrality and general applicability in Lukumi, 508 U.S. 520. In

Lukumi, a church affiliated with the Santeria religion challenged several ordinances that had

been enacted by the Hialeah, Florida city council. Animal sacrifice plays a significant role in the

practice of Santeria. When the plaintiff church announced plans to open a house of worship in

Hialeah, the city council passed ordinances banning the ritual killing of animals but permitting

the killing of animals in many other contexts.

The Supreme Court concluded that Hialeah's regulatory scheme was neither neutral nor

generally applicable. The ordinances failed the neutrality test because, taken together, they

amounted to a "religious gerrymander." Id. at 535, quoting Walz v. Tax Comm'n of New York

City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring). The city council had essentially

1 0

prohibited the killing of animals for religious reasons while exempting from prohibition almost

all non-religious killing. The Hialeah ordinances were not generally applicable, because they

were underinclusive with regard to the laws' purported goals, ultimately "pursu[ing] the city's

governmental interests only against conduct motivated by religious belief." In reaching its

decision, the Lukumi court provided helpful guidelines for analyzing the concepts of neutrality

and general applicability. This Court will draw on these guidelines in assessing the Plaintiffs'

position.

I. NEUTRALITY

Under Lukumi, in order to establish that a law is not neutral, a plaintiff must show "that

the object or purpose of [the] law is the suppression of religion or religious conduct." Id. a t 533.

The Lukumi court explained that "the minimum requirement of neutrality is that a law not

discriminate on its face," but that "[f]acial neutrality is not determinative." Id. a t 533-34.

Because "[t]he Free Exercise Clause protects against governmental hostility which is masked, as

well as overt," courts should look beyond the surface for indications that the purpose of a law is

to suppress religion. Id. a t 534. The court observed that "the effect of a law in its real operation

is strong evidence of its object." Id. at 535.

The Plaintiffs in the present case do not appear to contend that, on its face, the CSA

targets the religious use of drugs. Rather, the Plaintiffs seem to argue that a comparison between

the statute's treatment of secular uses, as opposed to its treatment of religious uses, supports the

inference that the GSA's purpose is to limit the religious use of controlled substances. The

Plaintiffs maintain that "the CSA is not neutral as between secular and religious interests,"

because the law exempts the secular use of controlled substances in medical, scientific,

industrial, and research settings, but bans almost all religious uses of controlled substances. 3

The Plaintiffs' failure to take into account the full spectrum of potential uses for drugs

undercuts their argument, however. For example, the Plaintiffs ignore a very important category

of secular drug use- recreational drug use. This Court imagines that there are a number of

individuals in the United States who may wish to use a given controlled substance in a setting

that is neither scientific nor ceremonial in a religious context. The CSA restricts the freedom of

recreational users, as well religious users, to consume controlled substances. This Court cannot

reasonably infer from the way that the CSA operates that the purpose of the law is to target

religious ceremonial drug use. This case therefore presents much different circumstances from

Lukumi, where the Supreme Court found, upon examining the operation of the challenged city

ordinances, that "[i]t is a necessary conclusion that almost the only conduct subject to [the

ordinances] is the religious exercise of Santeria church members." Id. at 535.

2.

GENERAL APPLICABILITY

Discussing the requirement of general applicability, the Lukumi court observed that "[a]ll

laws are selective to some extent, but categories of selection are of paramount concern when a

law has the incidental effect of burdening religious practice." Id. a t 542. The "government ...

cannot in a selective manner impose burdens only on conduct motivated by religious belief." Id.

at 543. The ordinances at issue in Lukun2i were so deficient that the court declined to "define

'

The Plaintiffs also argue that the CSA is not neutral between religions, because

the law provides an exemption for the Native American Church's ceremonial use of peyote. The

Court has already addressed this issue at length, in the context of the Plaintiffs' claims under the

Equal Protection clause and the Establishment Clause. In its Memorandum Opinion and Order

entered February 25, 2002, the Court found that the federal government's peyote exemption

policy does not constitute impermissible favoritism toward the Native American Church.

12

with precision the standard used to evaluate whether a prohibition is of general application." Id.

However, the Lukumi court made clear that a law is not generally applicable if it was purportedly

adopted to protect certain interests, yet "fail[s] to prohibit nonreligious conduct that endangers

these interests in a similar or greater degree than [the banned religious conduct] does." Id.

In Lukumi, for example, the city of Hialeah claimed that one of the goals of the contested

ordinances was to prevent cruelty to animals. The Supreme Court noted, though, that "[m]any

types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by

express provision." Id. a t 543. Hunting, fishing, rodent extermination, and the euthanasia of

stray animals all continued to be legal. The Lukumi court concluded that "[d]espite the city's

proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid

few killings but those occasioned by religious sacrifice." Id. The Court found that the

ordinances were similarly underinclusive with respect to the city's claimed goal of protecting

public health.

The Third Circuit examined the general applicability requirement in an opinion cited by

both the Plaintiffs and the Government. In Fraternal Order of Police v. City of Newark, 170

F.3d 359 (1999), a Newark Police Department policy required police officers to shave their

beards. The police department allowed exceptions to the shaving policy for officers who had

medical reasons for not shaving and for undercover officers. Two police officers challenged the

departmental policy on the ground that they are Sunni Muslims and their religion prohibits them

from shaving.

The Third Circuit found that while the exemption for undercover officers did not

diminish the general applicability of the beard policy, the medical exemption did. The

1 3

Department had adopted the policy to promote a uniform appearance among its officers. The

Third Circuit pointed out that "the undercover exception ... does not undermine the

Department's interest in uniformity because undercover officers `obviously are not held out to

the public as law enforcement person[nel]."' Id. at 366 (citing reply brief.) In contrast, "the

medical exemption raises concern because it indicates that the Department has made a value

judgment that secular (i.e., medical) motivations for wearing a beard are important enough to

overcome its general interest in uniformity but that religious motivations are not." Id. at 366.

Like the Third Circuit, the District of Nebraska found that a governmental policy failed

to meet the general applicability standard elucidated in Lukumi. Rader v. Johnston, 924 F.Supp.

1540 (D. Neb. 1996) concerned a University of Nebraska-Keamey rule requiring freshmen to

live in dormitories on campus. University officials represented that the goals of the policy were

to promote diversity and tolerance, encourage academic achievement, and, for financial reasons,

to make sure that there were enough students living on campus to fill the dorms. The plaintiff, a

devout Christian, requested an exemption from the on-campus housing policy, so that he could

live instead in an off-campus Christian housing facility. The plaintiff maintained that the

lifestyle in the dorms, where many students drank alcohol and had parties, would interfere with

the practice of his religion. When the university denied the plaintiff's application for an

exemption, he brought a claim under the Free Exercise clause.

In reaching its decision, the District of Nebraska took note of the many categories of

freshmen exempt from the housing rule. The policy enumerated exceptions for married students,

students with parents living nearhy, part-time students, and students who were older than

nineteen at the start of the school year. In addition, university officials granted a significant

14

number of exceptions to students applying for waivers based on a variety of special

circumstances. Evidence showed that in practice, the university applied the housing rule to only

1,600 of 2,500 freshmen. The District of Nebraska cited the fact that "[o]ver one third of the

freshman students . . . are not required to comply with the parietal rule" in determining that "the

parietal rule cannot be viewed as generally applicable to all freshman students." Id. at 1553.

The court stressed that "although exceptions are granted by the defendants for a variety of nonreligious

reasons, they are not granted for religious reasons." Id. at 1553.

In this case, the Court will follow the approach outlined in Lukumi. In order to evaluate

the general applicability of the CSA, this Court will inquire into whether the statute is

substantially underinclusive as to its purported aims- whether the CSA "fail[s] to prohibit

nonreligious conduct that endangers" governmental interests "in a similar or greater degree

than" the religious ceremonial consumption of controlled substances does. In their

memorandum in support of the motion for preliminary injunction, the Plaintiffs emphasize that

through the CSA's registration scheme for drugs used in medical, scientific, industrial, and

research settings, huge amounts of controlled substances are produced and distributed.

However, this Court believes, as does the Government, that the Lukumi framework requires the

Plaintiffs to demonstrate more than that the CSA includes significant exceptions for certain

secular uses of controlled substances. Rather, the Plaintiffs must show that the research and

scientific exceptions to the CSA jeopardize the same interests that the government uses to justify

the restrictions on religious conduct imposed by the CSA.

The Court concludes in this case. that the secular exceptions specified in the CSA do not

implicate the purpose of the law. The Government has suggested that in enacting the CSA,

1 5

"Congress's primary target was a secular one: the recreational use of controlled substances."

Reply at 37, citing H.R. Rep. No. 91-1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.C.C.A.N.

4566. This Court agrees that the CSA reflects Congressional concern about the risks to public

health and safety associated using controlled substances. Included among the findings at the

beginning of the CSA is the statement that "[t]he illegal importation, manufacture, distribution,

and possession and improper use of controlled substances have a substantial and detrimental

effect on the health and general welfare of the American people." 21 U.S.C. § 801(2).

As the Third Circuit explained in the City of Newark case, "the Free Exercise Clause does

not require the government to apply its laws to activities that it does not have an interest in

preventing." 170 F.2d at 366. Here, allowing certain uses of drugs in controlled scientific,

research, and medical environments does not run counter to the government's interest in

promoting public health. The unregulated consumption of drugs in ceremonial settings may

present risks of adverse health effects and illegal diversion in a way that the research exceptions

do not. See, e.g., Hrg. Tr. at 864, Testimony of Sander Genser (Discussing why controlled

research settings ensure relative safety.) This Court concludes that the CSA meets the standard

for general applicability, because the law generally applies to the uses of controlled substances

that endanger public health.

While the Plaintiffs' initial argument in favor of their free exercise claim focused on the

research exemptions set forth in the CSA, the Plaintiffs' reply brief and trial brief present a

some plants growing within the United States contain DMT,

"the government has singled out hoasca for suppression and has singled out the adherents of the

UDV for threat of criminal prosecution." Reply, at 34. According to the Plaintiffs, "the

different contention- that altho

1 6

Department of Justice, DEA and Customs have made the administrative decision to remain aloof

from any thorny decisions regarding the possession and abuse of DMT-containing plants that

grow in this country and has chosen, instead, to limit its enforcement efforts to religious use of

DMT-containing plants." Supplemental Trial Memorandum, at 5. The Plaintiffs seems to draw

on an Equal Protection theory, arguing that even if the CSA is impartial, the Government is

applying it in a way that discriminates against the Plaintiffs on the basis of religion. (See, e.g.,

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 (1976), stating that "equal

protection analysis requires strict scrutiny of a legislative classification ... when the

classification impermissibly interferes with the exercise of a fundamental right or operates to the

peculiar disadvantage of a suspect class.")

During the hearing, the Plaintiffs presented evidence showing that certain plants growing

in this country, including phalaris grass, contain DMT. The Plaintiffs' evidence included a

document showing that the United States Department of Agriculture even recommends using one

kind of phalaris for erosion control. The Plaintiffs appear to argue that if people are allowed to

grow phalaris grass for nonreligious reasons, while the UDV's supply of hoasca is confiscated,

this Court should conclude that the federal government must be discriminating against the

Plaintiffs on the basis of religion. The Court does not believe that the evidence about phalaris

would necessarily lead to that conclusion. Individuals with phalaris grass in their lawns may

possess DMT in some sense.

However, if there are no indications that the people with phalaris

lawns are consuming the grass, law enforcement might legitimately choose not to prosecute, for

reasons other than that the grass is being used for the secular purpose of having a lawn. Federal

law enforcement entities might prioritize focusing on the UDV's hoasca use not because the use

17

is religious, but instead because UDV members make much more extensive use of hoasca by

personally ingesting it than a person with a phalaris lawn makes of the grass. Before their tea

was confiscated, UDV officials regularly distributed the tea to church members for consumption.

Some evidence presented at the hearing suggested that non-religious consumption of

plants containing DMT does take place in the United States. This evidence included materials

taken from the intenet- advertisements for plants containing DMT and testimonials from

people claiming to have used teas similar to hoasca. While such evidence might eventually

contribute to support an argument that the UDV was selectively prosecuted on the basis of

religion, this evidence, standing alone, is insufficient to create an inference that selective

prosecution in fact occurred. As the Government observes, the use of DMT reported on the

internet differs in scale from the UDV's use, and the authorities may have chosen to target the

UDV for reasons other than religion. The Government notes that "[t]he possibility that an

internet account of a single dose may be accurate and could be reliably traced to the perpetrator

cannot compare to the actual interception of 3,000 doses of an illegal substance being imported

for distribution." Trial Memorandum, at 13.

In its February 25, 2002 Memorandum Opinion and Order addressing the Plaintiffs'

Equal Protection claim, the Court noted that Plaintiffs' counsel have represented that following

discovery, the Plaintiffs may pursue a claim that the government has impermissibly targeted the

UDV in particular for prosecution. By finding that the Plaintiffs' evidence is not sufficient at

this time to support a preliminary injunction based on a selective prosecution theory, the Court

does not intend to foreclose further efforts by the Plaintiffs to develop that theory.

18

B.

PLAINTIFFS' ARGUMENT THAT THE CSA DOES NOT EXTEND TO

HOASCA

This Court has thus far assumed, in considering the Plaintiffs' claims under the United

States Constitution, that the CSR's ban on DMT applies to hoasca. The Plaintiffs argue,

however, that "[e]ven if the Defendants were not violating Plaintiffs' rights under RFRA and the

Free Exercise and the Equal Protection clauses, their actions are nonetheless illegal because

hoasca is not a controlled substance" under the CSA. The Plaintiffs acknowledge that "[o]ne of

the plants that comprise Hoasca, psychotria viridis, is naturally composed, in very small part, of

DMT." The Plaintiffs also recognize that DNIT is scheduled as a controlled substance under the

CSA. They maintain, though, that the CSA prohibits only synthetic DMT, and not the DMT

occurring naturally in plants. The Plaintiffs premise this argument on the proposition that the

language of the CSA is ambiguous as applied to DMT in a natural state.

As the United States Supreme Court has made clear, "[t]he starting point for ...

interpretation of a statute is always its language." Community for Creative Non-Violence v.

Reid, 490 U.S. 730, 739 (1989). Thus this Court must first look to the language of the CSA in

order to evaluate the Plaintiffs' arguments. The CSA divides controlled substances into five

schedules, classified according to Congressional determinations regarding each drug's potential

for abuse and each drug's accepted medical uses. The CSA places a number of hallucinogenic

drugs into Schedule 1, the most strictly regulated category. Schedule I(c) provides that "[u]nless

specifically excepted or unless listed in another schedule, any material, compound, mixture, or

A drug's placement in Schedule I indicates that the substance "has a high

potential for abuse," that it "has no currently accepted medical use in treatment in the United

States," and that "[t]here is a lack of accepted safety for use of the drug ... under medical

supervision." 21 U.S.C. § 812(b)(1).

1 9

preparation, which contains any quantity of the following hallucinogenic substances" falls within

the Schedule I category. Among the hallucinogens listed in Schedule I(c) is dimethyltryptamine

(DMT).

This Court agrees with the Government that the language of the CSA clearly covers

hoasca. After all, the Plaintiffs do not dispute that one of the plant components of hoasca

contains DMT. The Court is constrained to conclude that hoasca tea thus constitutes a "material,

compound, mixture, or preparation which contains any quantity" of DMT, within the plain

meaning of the statute.

However, the Plaintiffs offer a number of theories of statutory construction to support

their argument that the CSA should not be i nterpreted to apply to plants that contain DMT and to

substances derived from those plants. For example, the Plaintiffs stress that Congress is

presumed to avoid superfluous drafting. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 574

(1995). The Plaintiffs observe that the CSA contains a number of instances where Congress

expressly banned both a given chemical and the plant in which that chemical is naturally found.

Based on this, the Plaintiffs declare that because Congress listed only a chemical substance,

DMT, it did not intend that plants containing that substance would also be prohibited.

Otherwise, Congress would have engaged in superfluous drafting elsewhere in the CSA by, for

example, explicitly scheduling both peyote (a plant) and mescaline (a chemical substance.)

The Plaintiffs have also drawn on the following principles to argue that the CSA should

not be interpreted to ban hoasca: 1) the canon that courts should not construe statutory

provisions to contradict other parts of a statutory scheme, see e.g., United Sav. Ass'n v. Timbers

of Inwood Forest Assocs., 484 U.S. 365, 371 (1988); 2) the principle of "Evpressio unius est

20

exclusio alterius", see e.g., Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993); 3) the rule of lenity, see e.g. United States v.

Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952); and 4) the principle that courts

should construe statutes to avoid constitutional problems, see e.g., NLRB v. Catholic Bishop of

Chicago, 440 U.S. 490, 500 (1979).

The Plaintiffs have presented interesting arguments under all of these theories, and their

arguments may well have been persuasive if the statute at issue were any less clear. As the

Government points out, however, most of the principles discussed by the Plaintiffs become

relevant only if the statutory language is ambiguous.

The Supreme Court has noted that:

In any event, canons of construction are no more than rules of thumb that help

courts determine the meaning of legislation, and in interpreting a statute a court

should always turn first to one, cardinal canon before all others. We have stated

time and again that courts must presume that a legislature says in a statute what it

means and means in a statute what it says there. See, e.g., United States v. Ron

Pair Enterprises, Inc., 489 U.S. 235, 241-242, 109 S.Ct. 1026, 1030-1031, 103

L.Ed.2d 290 (1989); United States v. Goldenberg, 168 U.S. 95, 102-103, 18 S.Ct.

3, 4, 42 L.Ed. 394 (1897); Oneale v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150

(1810). When the words of a statute are unambiguous, then, this first canon is also

the last: "judicial inquiry is complete." Rubin v. United States, 449 U.S. 424, 430,

101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); see also Ron Pair Enterprises, supra,

489 U.S., at 241, 109 S.Ct., at 1030.

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). More recently, the Supreme

Court has explained that a court's "first step `is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute in the case,"' and that

"[t]he inquiry ceases `if the statutory language is unambiguous and the statutory scheme is

coherent and consistent."' Barnhart v. Sigmon Coal Company, Inc., 534 U.S. 438 (2002),

quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).

Granted, a court should not read a statute literally if a literal construction would "lead to

2 1

irreconcilable inconsistencies or clearly absurd results that Congress could not have intended."

Resolution Trust Corp. v. Westgate Partners, Ltd., 937 F.2d 526, 531 (10th Cir. 1991).

However, this Court does not believe that interpreting the CSA to prohibit hoasca use results in

absurdity or creates an internally-contradictory statute. The Plaintiffs observe that many plants

and animals, including humans, contain DMT; and the Plaintiffs imply that because the CSA

cannot be read to ban humans, that the statute must apply only to synthetic DMT. Simply

because banning humans would be absurd does not mean that banning any non-synthetic DMT

found elsewhere would be absurd. Courts confronted with potentially absurd statutory

applications are to consider "alternative interpretations consistent with the legislative purpose."

Oxy USA, Inc. v. Babbitt, 268 F.3d 1001, 1012 (10th Cir. 2001), quoting Grin v. Oceanic

Contractors, Inc., 458 U.S. 564, 575 (1982). In this case, interpreting the CSA to apply to the

ingestion of a tea containing a hallucinogenic chemical seems reasonable, even if interpreting the

CSA to apply to the human body does not.

In addition, the Plaintiffs have failed to establish that interpreting the CSA to apply to

hoasca would contradict other provisions of the statute. The Plaintiffs have not pointed to any

contradictions that directly concern the CSR's treatment of DMT and substances containing

DMT. It is not as if the statute places DMT in one schedule and products made with DMT in

another schedule, for example. Rather, the Plaintiffs' arguments rely on an analysis of the

CSR's approach to other drugs.

The Plaintiffs argue that construing the CSR's prohibition on DMT to apply to hoasca

creates a contradiction in the federal peyote exemption scheme. The CSA schedules both

peyote, a cactus button, and mescaline, the hallucinogenic chemical found in peyote, but the

22

federal regulatory exemption refers only to peyote, and not to mescaline. The Plaintiffs maintain

that "[i]f the listing of a substance encompasses all plants that contain the substance, then the

exemption for peyote alone is meaningless: the [Native American Church] would violate the

CSA at each of its ceremonies by using a plant that contains `mescaline."' Memorandum in

Support of Motion for Preliminary Injunction, at 33. The Government has effectively countered

the Plaintiffs' argument by pointing out that a member of the Native American Church would not

violate the CSA by using peyote, even if peyote contains mescaline, because the federal

regulatory exemption explicitly permits church members to use peyote.

Because the plain language of the CSA clearly indicates that the statute's prohibition on

DMT extends to hoasca, and because the application of the statute does not result in absurdity or

in internal contradictions, this Court concludes that hoasca is an illegal substance under the CSA.

C.

PLAINTIFFS' CLAIMS UNDER INTERNATIONAL LAW OF COMITY

This Court's conclusion that the language of the CSA is unambiguous, with respect to the

statute's application to the use of hoasca by the UDV, resolves another of the Plaintiffs' claims.

The Plaintiffs contend that the international law doctrine of comity suggests that the government

should not interfere with the UDV's religious consumption of hoasca. Comity is "the

recognition which one nation allows within its territory to the legislative, executive, or judicial

acts of another nation, having due regard both to international duty and convenience, and to the

rights of its own citizens, or of other persons who are under the protection of its laws." In the

Matter of The Colorado Corp. v. Lam, 531 F.2d 463, 468 (10th Cir. 1976), quoting Hilton v.

Guyot, 159 U.S. 113 (1895). The United States Supreme Court has observed that "[c]omity

refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases

23

touching the laws and interests of other sovereign states." Societe Nationale Industrielle

Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522,543

n. 27 (1987).

The Plaintiffs stress that courts have recognized a "canon of statutory construction that

requires courts, whenever possible, to construe federal statutes to ensure their application will

not violate international law." Commodity Futures Trading Commission v. Nahas, 738 F.2d 487,

493 (D.C. Cir. 1984), citing Murray v. The Schooner Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed.

200 (1804) ("[A]n act of congress ought never to be construed to violate the law of nations, if

any other possible construction remains.") See also, e.g., Grunfelder v. Heckler, 748 F.2d 503,

509 (9th Cir. 1984) ("Absent an expression of congressional intent to the contrary,

considerations of courtesy and mutuality require our courts. to construe domestic legislation in a

way that minimizes interference with the purpose or effect of foreign law.")

The Plaintiffs argue that allowing the Government to prohibit the UDV's ceremonial use

of hoasca would conflict with Brazilian law and with a number of international treaties.' As Dr.

Brito testified during the evidentiary hearing, Brazil permits members of the UDV to consume

hoasca for religious reasons. The Plaintiffs also emphasize that international agreements to

which the United States is a party, such as the United Nations International Covenant on Civil

and Political Rights, pledge support for freedom of religious beliefs and practices. Moreover,

'

The Plaintiffs do not appear to argue that any treaty explicitly or directly requires

that the United States refrain from prohibiting the religious use of hoasca. Rather, the Plaintiffs

seem to contend that the Government's interpretation of the CSA to apply even to the

sacramental consumption of hoasca is inconsistent with general principles of international

religious freedom that are reflected in treaties to which the United States is a signatory.

Therefore, this Court has not conducted an inquiry into the issue of whether, for example, a laterenacted

treaty would trump the ban on DMT contained in the CSA.

24

Plaintiffs direct attention to the International Religious Freedom Act, 22 U.S.C. § 6401-6481,

enacted in 1998, which, Plaintiffs say, further reflects Congressional commitment to the

promotion of religious freedom throughout the world. 6 According to the Plaintiffs, permitting

the ceremonial use of hoasca would "not only show comity to, and enhance our relations with,

[Brazil], but will also demonstrate our government's willingness to give appropriate respect to a

multi-cultural international community generally." Memorandum in Support of Motion for

Preliminary Injunction, at 44.

Even assuming that principles of international law would favor construing an ambiguous

controlled substances statute to allow the religious use of hoasca, this Court believes that the

CSA does not leave room for the interpretation the Plaintiffs request. As the United States Court

of Appeals for the District of Columbia Circuit eloquently stated in Nahas, "[f]ederal courts must

give effect to a valid, unambiguous congressional mandate, even if such effect would conflict

with another nation's laws or violate international law." 738 F.2d at 495. The sources cited by

the Plaintiffs for the proposition that a domestic law should not be interpreted to conflict with

international law, such as the Murray and Grunfelder cases, 6 U.S. 64 and 748 F.2d at 509,

assume that the domestic law lends itself to more than one interpretation. In this case, the Court

has found that, under the plain language of the CSA, the statute's ban on DMT clearly extends to

hoasca. Comity is not an "absolute obligation," Colorado Corp., 531 F.2d at 468, quoting

Hilton, 159 U.S., and this Court cannot rely on the comity principle to disregard a clear

statement from Congress on a matter of domestic law.

However, as the Plaintiffs acknowledge, Congress passed this statute to address

threats to religious freedom occurring in countries other than the United States.

25

D.

RELIGIOUS FREEDOM RESTORATION ACT CLAIM

In Section III(A) above, this Court evaluated the Plaintiffs' Free Exercise claim in light

of the Supreme Court's holding in Sinith that "the right to free exercise of religion does not

relieve an individual of the obligation to comply with a valid and neutral law of general

applicability," even if that law incidentally burdens the practice of religion.

United States v.

Meyers, 95 F.3d 1475, 1480 (10th Cir. 1996), citing Smith, 494 U.S. 872. Because this Court

concluded that the CSA was neutral and generally applicable, the Court found that the Plaintiffs

were not entitled to a preliminary injunction on their First Amendment claim.

However, the Plaintiffs also raise a religious freedom claim that has a statutory, rather

than Constitutional, basis. Following the Supreme Court's decision in Smith, Congress enacted

the Religious Freedom Restoration Act (RFRA), 42 U.S.C..§ 2000bb. In the "Congressional

findings and declaration of purposes" section of the statute, Congress criticized the Supreme

Court's holding in Smith and stated that RFRA was intended "to restore the compelling interest

test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205

(1972)." RFRA provides that:

Government may substantially burden a person's exercise of religion only

if it demonstrates that application of the burden to the person-

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling

governmental interest.

42 U.S.C. § 2000bb-1(b).7

In order to state a prima facie claim under RFRA, a plaintiff must show "(1) a

substantial burden imposed, by the federal government on a (2) sincere (3) exercise of religion."

Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). If the plainti

requirements by a preponderance of the evidence, the burden shifts to the government to

demonstrate that the challenged regulation furthers a compelling state interest in the least

restrictive manner." Meyers, 95 F.3d at 1482. In this case, the Government did not dispute, for

purposes of the Plaintiffs' motion for preliminary injunction, that the Plaintiffs had established a

prima facie case under RFRA. Stated differently, the government conceded, at this point in the

course of the case, that the CSA imposes a substantial burden on Plaintiffs' sincere exercise of

religion. Hence, the hearing began with the Government shoulde

upon it by Congress in passing RFRA.

1.

COMPELLING GOVERNMENTAL INTERESTS

The Government asserts that it "has at least three compelling interests in prohibiting the

importation and use of DMT-containing substances, all of which are implicated by the UDV's

religious use of ayahuasca." Response, at 15. The Government has alleged a compelling interest

in 1) adhering to the 1971 Convention on psychotropic substances; 2) preventing the health and

safety risks posed by hoasca; and 3) preventing the diversion of hoasca to non-religious use.

Before turning to a specific analysis of whether the Government has met its burden of

meets "the threshold

g the weighty load thrust

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court declared

RFRA unconstitutional as applied to state governments. However, the Tenth Circuit has held

that "RFRA as applied to the federal government is severable from the portion of RFRA declared

unconstitutional in Flores, and independently remains applicable to federal officials." 242 F.3d

950, 960 (10th Cir. 2001).

27

establishing a compelling interest, this Court notes that there are two significant distinctions

between the present case and many other cases in which individuals have challenged drug laws

on religious freedom grounds. First, as observed above, the Government concedes for purposes

of this motion that the UDV is a religion, that the Plaintiffs sincerely believe in the tenets of the

UDV religion, and that the application of the CSA to the UDV's ceremonial use of hoasca

substantially burdens the Plaintiffs' practice of their religion. In contrast, courts in other RFRA

cases concerning drugs have sometimes found that the plaintiff's religious beliefs do not

constitute religious beliefs, or that the plaintiff does not sincerely hold the beliefs, or that the

government's action does not actually substantially burden the plaintiff's religious practice.

United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996) involved a criminal defendant

who moved under RFRA to dismiss the marijuana charges brought against him. Mr. Meyers

"testified that he is the founder and Reverend of the Church of Marijuana and that it is his

sincere belief that his religion commands him to use, possess, grow and distribute marijuana for

the good of mankind and the planet earth." Id. a t 1479. The Tenth Circuit considered whether

Mr. Meyers's convictions were "religious beliefs," or whether the convictions instead amounted

to "a philosophy or way of life." Id. a t 1482. The Tenth Circuit adopted the district court's

finding that, in light of the secular nature of Mr. Meyers's views on the medical, therapeutic, and

social benefits of marijuana. "Meyers' beliefs more accurately espouse a philosophy and/or way

of life rather than a `religion."' Id. at 1484.

In United States v. Bauer, 84 F.3d 1549, a Ninth Circuit case, three criminal defendants

sought to rely on RFRA in defending against a number of marijuana charges. The defendants

were adherents to the Rastafarian religion, in which marijuana is a sacrament. The Bauer court

28

emphasized that the availability of RFRA as a defense to the various marijuana charges hinged

on whether each particular criminal provision burdened the practice of Rastafarianism. The

Ninth Circuit found that the district court had erred in prohibiting the defendants from using

RFRA as a defense to simple possession charges. Id. a t 1559. However, "[a]s to the counts

relating to conspiracy to distribute, possession with intent to distribute, and money laundering,

the religious freedom of the defendants was not invaded" because "[n]othing before [the court]

suggests that Rastafarianism would require this conduct." Id. In a more recent Ninth Circuit

case, the court cited Bauer i n holding that a criminal defendant could not draw on RFRA to

defend against charges brought under a Guam statute prohibiting the importation of controlled

substances. Guam v. Guerreo, 290 F.3d 1210 (9th Cir. 2002). The Guerrero court noted that it

was "satisfied that Rastafarianism does not require importation of a controlled substance." Id. at

1223.

There is a second major distinction between the present case and the cases involving

claims that the principles of religious freedom reflected in the Free Exercise Clause and RFRA

should be interpreted as permitting the sacramental use of marijuana. This distinction stems

from the significant differences in the characteristics of the drugs at issue. Affirming a trial

court's denial of a criminal defendants' request to rely in RFRA as a defense to marijuana

charges, the Eighth Circuit stated "that the government has a compelling state interest in

controlling the use of marijuana." United States v. Brown, 72 F.3d 134 (8th Cir. 1995) (table).

As support for this observation, the Brown court cited a number of First Amendment opinions

which had emphasized problems associated with marijuana in particular. See, e.g., United States

v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989) ("Every federal court that has considered this

29

issue has accepted Congress' determination that marijuana poses a real threat to individual health

and social welfare and had upheld criminal penalties for possession and distribution even where

such penalties may infringe to some extent on the free exercise of religion."); United States v.

Middleton, 690 F.2d 820, 825 (11th Cir. 1982), quoting Leary v. United States, 383 F.2d 851,

860-61 (5th Cir. 1967) ("It would be difficult to imagine the harm which would result if the

criminal statutes against marihuana were nullified as to those who claim the right to possess and

traffic in this drug for religious purposes.")

The parties in this case have presented a great deal of evidence on the issue of whether

the United States has a compelling interest in prohibiting the UDV's religious use of hoasca. Of

course, regardless of what this evidence might suggest regarding the dangers associated with

hoasca, the Court cannot ignore that the legislative branch of the government elected to place

materials containing DMT in Schedule I of the CSA, reflecting findings that substances

containing DMT have "a high potential for abuse," and "no currently accepted medical use in

treatment in the United States," and that "[t]here is a lack of accepted safety for use of [DMT]

under medical supervision." 21 U.S.C. § 812(b)(1). Discussing another statute concerning

controlled substances, the Supreme Court once noted, "[w]hen Congress undertakes to act in

areas fraught with medical and scientific uncertainties, legislative options must be especially

broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that

judges with more exposure to the problem might make wiser choices." Marshall v. United

States, 414 U.S. 417, 427 (1974). More recently, the Supreme Court's opinion in United States

v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 493 (2001) suggested that courts

should accord a great deal of deference to Congress's classification scheme in the CSA.

30

The Government argues that "Congress has made an affirmative statutory declaration that

materials containing DMT. . . are unsafe." Response, at 27-28. If this Court were employing a

more relaxed standard to review the application of the CSA to the UDV's use of hoasca, it would

be very reluctant to question this Congressional finding concerning DMT. However, the

Plaintiffs are relying on RFRA, a more recent legislative enactment by Congress, to challenge

the extension of the CSA's ban on DMT to the UDV's religious consumption of hoasca. Under

RFRA, Congress mandated that a court may not limit its inquiry to general observations about

the operation of a statute. Rather, "a court is to consider whether the `application of the burden'

to the claimant `is in furtherance of a compelling governmental interest' and `is the least

restrictive means of furthering that compelling governmental interest.' 42 U.S.C. § 2000bb-1(b)

(emphasis added)." Kikunwra, 242 F.3d at 962. In Kikumura, a case in which a federal prisoner

was challenging a decision made by prison officials, the Tenth Circuit Court of Appeals noted

that "under RFRA, a court does not consider the prison regulation in its general application, but

rather considers whether there is a compelling government reason, advanced in the least

restrictive means, to apply the prison regulation to the individual claimant." Id.

RFRA requires that the Government "demonstrate[]" its compelling interest and its use of

the least restrictive means to accomplish that interest. In enacting RFRA, Congress explicitly

stated that "the term `demonstrates' means meets the burdens of going forward with the evidence

and of persuasion." 42 U.S.C. § 2000bb-2. This Court concludes that the Government has fallen

short of meeting its difficult burdens, which Congress requires. The Government has not shown

that applying the CSA's prohibition on DMT to the UDV's use of hoasca furthers a compelling

3 1

interests This Court cannot find, based on the evidence presented by the parties, that the

Government has proven that hoasca poses a serious health risk to the members of the UDV who

drink the tea in a ceremonial setting. Further, the Government has not shown that permitting

members of the UDV to consume hoasca would lead to significant diversion of the substance to

non-religious use. The Court bases its determinations on the following facts.

a.

HEALTH RISKS TO MEMBERS OF THE UDV

The consumption of hoasca tea plays a central role in the practice of the UDV religion.

Decl. of Jeffrey Bronfman, Exh. A. to Pltf. Mot. for Prelim. Inj., at 13. Hoacsa is a sacrament in

the UDV. Church doctrine instructs that members can fully perceive and understand God only

by drinking the tea. Pltf. Exh. 21, Decl. of David Lenderts, at 4. UDV members drink hoasca

only during regular religious services, held on the first and third Saturdays of every month and

on ten annual holidays. Decl. of Bronfman, at 8. A church leader called a "directing mestre"

generally conducts the service. Id. a t 9. Ceremonies start at 8 p.m. and last for about four hours.

Id. at 8-10. The mestre begins the service by distributing measured glasses of tea to each

participant. Id. a t 10. Activities during UDV services include the recitation of church law by

selected congregants, the singing of sacred chants by the mestre, question-and-answer exchanges

between the mestre and participants, and a period of religious teaching led by the mestre. Id. a t

The Tenth Circuit has very recently observed that "[w]hether something qualifies

as a compelling interest is a question of law." United States v. Hardman, No. 99-4210, 2002 WL

1790584, at *8 (10th Cir. Aug. 5, 2002), citing Citizens Concerned About Our Children v.

School Bd., 193 F.3d 1285, 1292 (1 lth Cir. 1999); Concrete Works of Colo., Inc. v. City and

County of Denver, 36 F.3d 1513, 1522 (10th Cir. 1994). However, in this case, there does not

seem to be a dispute between the parties over whether, in the abstract, the federal government

has a compelling interest in protecting the health and safety of people in the United States.

Rather, the parties have focused their arguments on the issue of whether the Government has met

its very heavy burden of showing that applying the CSA to the UDV's consumption of hoasca

furthers the Government's stated interests.

32

10.

Hoasca is brewed from two plants indigenous to the Amazon River Basin-

Banisteriopsis caapi and Psychotria viridis. Pltf. Exh. 11, Decl. of Charles Grob, at 7.

Psychotria contains dimethyltryptamine (DMT), a hallucinogenic chemical. Id. By itself,

psychotria does not trigger an altered state of consciousness when taken orally, because

monoamine oxidase (MAO) enzymes in the digestive system inactivate the DMT psychotria

contains. Id. However, banisteriopsis contains harmala alkaloids, known as beta-carbolines,

that inhibit MAO's and prevent the inactivation of DMT. Id.; Deft. Exh. ZZ, Rpt. of Sander

Genser, at 6. Ingesting the combination of psychotria and banisteriopsis allows DMT to reach

levels in the brain sufficient to produce a significantly altered state of consciousness. Deft. Exh.

ZZ, Rpt. of Genser, at 6.

Scientists have devoted little research to the physical and psychological effects of

ceremonial hoasca consumption. Id. The lack of knowledge about hoasca, relative to many

other substances, forms the core of the dispute between the parties in this case. The Plaintiffs'

experts and the Government's experts have offered differing interpretations of preliminary data,

conflicting views on the value of comparisons between hoasca and other hallucinogenic drugs,

and contrasting evaluations of whether certain findings signify risks associated with hoasca use.

Ultimately, the Plaintiffs contend that evidence does not exist, to a reasonable degree of

scientific certainty, to conclude that the UDV's religious use of hoasca carries any significant

health risk. See, e.g., Hrg. Tr. at 207-08, testimony of Grob. The Government, in contrast,

maintains that existing evidence suggests that the ingestion of hoasca poses substantial health

concerns. See, e.g., Deft. Exh. ZZ, Rpt. of Genser, at 5.

3 3

During the evidentiary hearing, the Plaintiffs presented the testimony of Dr. Charles

Grob, Professor of Psychiatry at the University of California, Los Angeles. In 1993, Dr. Grob

led a team of researchers in conducting a study of the effects of hoasca use on UDV members in

Brazil. The study compared fifteen long-term members of the UDV, who had drunk hoasca for

several years, with fifteen control subjects who had never used hoasca. Pltf. Exh. 11, Decl. of

Grob, at 9-10. The researchers administered personality tests, psychiatric interviews,

neuropsychological tests, and physical examinations to all of the subjects in the study. In

addition, the subjects in the experiment group completed a hallucinogen rating scale

questionnaire after they had participated in an hoasca ceremony. Researchers also conducted life

story interviews with the members of the experimental group. Id.

The investigators reported their findings in a number of articles published in scientific

journals. While acknowledging that the study was only preliminary, the researchers' overall

assessment of the safety of hoasca use in the UDV was positive. Discussing the study, Dr. Grob

stated that, despite its limitations, "our investigation did identify that in a group of randomly

collected male subjects who had consumed ayahuasca for many years, entirely within the context

of a very tightly organized syncretic church, there had been no injurious effects caused by their

use of ayahuasca. On the contrary, our research team was consistently impressed with the very

high functional status of the ayahuasca subjects." Pltf. Exh. 12, 2nd Decl. of Grob, at l. Of

particular interest to the researchers was that in the life story interviews, many of the

experimental subjects reported that they had engaged in self-destructive behavior before joining

the UDV and that their experiences in the UDV had allowed them to lead responsible,

meaningful lives. Pltf. Exh. 11, Decl. of Grob, at 12-13.

34

The Government has criticized the Plaintiffs' reliance on the 1993 hoasca study to show

the safety of hoasca use. From a methodological standpoint, the Government's experts maintain,

the hoasca study has many limitations. For example, the study employed a small sample size,

the study included only male subjects, and the study provided no baseline data that researchers

could use to compare information about subjects before and after participation in the hoasca

rituals of the UDV. Deft. Exh. JJJ, Rpt. of Alexander Walker, at 6-8; Deft. Exh. ZZ, Rpt. of

Genser at 6: Hrg. Tr. at 867-68, testimony of Genser; Hrg. Tr. a t 743, testimony of Lorne

Dawson.

The Government has also questioned whether long-time members of the UDV can be

considered representative of UDV members in general. Dr. Alexander Walker, a Professor of

Epidemiology at the Harvard School of Public Health, has. expressed the view that selection bias

undermined the value of the results generated through the hoasca study:

According to Dr. Grob and his coinvestigators, UDV adherents abstain from

alcohol and other intoxicating substances, they maintain high standards of

responsibility to family and society, they are diligent, and they are respectful of

their church's leadership. In selecting long-term members of the UDV as their

study group, the Hoasca Project team necessarily included persons who were able

to conform to the church's precepts over extended periods. There was no similar

requirement for stable, long-term, willing church attendance in the comparison

group. By itself, this one omission ensured that the hoasca-consuming group

would have a favorable psychological profile.

Deft. Exh. JJJ, Rpt. of Walker at 6. Dr. Lorne Dawson, the Government's expert on religion,

testified that restricting the sample to long-term, committed church members also creates

methodological concerns because of problems that generally accompany the collection of

conversion accounts in the sociology of religion. Dr. Dawson explained that:

3 5

[C]onversion accounts, for example, almost always involve some kind of a

somewhat exaggerated statement of what their preconversion life was like in

terms of the sinfulness, perhaps, of their life or the ways in which they engaged in

harmful behavior or abused substances, as in this case. There is a tendency to

exaggerate how bad one's life was before they joined the group. Then too,

perhaps they also exaggerate how good life is now that they have joined the group

or been involved with the group.

Hrg. tr. a t 745-46. Dr. Dawson stated that a superior sample would include people who have

belonged to the church for a short time and people who have left the church under a range of

circumstances, in addition to long-time church members. Id. at 746-47.

In addition to pointing out the methodological limitations of the 1993 hoasca study, the

Government has articulated a number of concerns regarding the UDV's ceremonial consumption

of hoasca. Dr. Sander Genser, 9 one of the Government's experts, stated in his report that

"existing studies have raised flags regarding potential negative physical and psychological

effects" of hoasca. Deft. Exh. ZZ, Rpt. of Genser, at 8. Some concerns derive from potential

dangers associated with DMT, hoasca's main psychoactive component. For example, Dr.

Genser has cited a study in which Dr. Rick Strassman administered intravenous DMT to test

subjects. Two subjects experienced such a high rise in blood pressure that Dr. Strassman

determined that researchers should not include individuals with a history of hypertension in

studies of DMT. Id. Another of the subjects in Dr. Strassman's study suffered a recurrence of

depression. Id.

According to Dr. Genser, concerns about the safety of hoasca stem not just from

information known about other forms of DMT, but also from information known about other

Dr. Genser is the Chief of the Medical Consequences Unit of the Center on AIDS

and Other Medical Consequences of Drug Abuse at the National Institute on Drug Abuse,

National Institutes of Health.

36

types of hallucinogenic substances. Id. Dr. Genser has listed a broad range of adverse

neuropsychological effects that have been linked to hallucinogen use. For instance, Dr. Genser

has described some dangers associated with lysergic acid diethylamide (LSD), another

hallucinogenic substance that shares pharmacological properties with DMT. Id. at 8-10

Particularly in individuals with pre-existing psychopathology, LSD may produce prolonged

psychotic reactions. Id. at 9. Users of LSD may also be at risk for developing persisting

perpetual disorder, known as "flashbacks," in which individuals reexperienee the effects of LSD

at times when they are not actually under the influence of the drug. Id. at 9-10.

The Plaintiffs dispute that evidence concerning intravenous DMT and evidence about

hallucinogens other than DMT represent strong indications that the UDV's ceremonial hoasca

use carries significant risk. With respect to the studies of -intravenous DMT, the Plaintiffs'

experts have emphasized that differences in the method of the administration of DMT translate

into important differences in how the drug is experienced. Intravenous DMT has a much more

rapid onset, and its effects are of much shorter duration, than hoasca taken orally. Dr. David

Nichols, Professor of Medicinal Chemistry and Molecular Pharmacology at Purdue University,

has observed that "[o]rally ingested hoasca produces a less intense, more manageable, and

inherently psychologically safer altered state of consciousness." Pltf. Exh. 24, Decl. of Nichols,

at 7; see also Pltf. Exh. 12, 2nd Decl. of Grob, at 2. Further, Dr. Nichols has questioned whether

Strassman's study suggests that even intravenous DMT causes hypertension. At the evidentiary

hearing, Dr. Nichols testified that "if you look at the pharmacology of DMT, there aren't

serotonin site receptors in the heart and cardiovascular system that would normally produce lifethreatening

cardiovascular changes," and that in the case of the hypertension reported by

37

Strassman, "one could argue that that response was related to the stress of the high dose." Hrg.

Tr. a t 1145.

Regarding the Government's evidence about the risks presented by other hallucinogens,

such as LSD, the Plaintiffs have noted the lack of evidence connecting hoasca use with

flashbacks. Dr. Grob has stated that "[m]y medical colleagues in the UDV inform me that they

have never received a report of persisting perpetual disorder ("flashbacks") induced by

ayahuasca," and that "I have also heard of no such report from any other source." Pltf. Exh. 12,

2nd Decl. of Grob, at 3. As to other negative neuropsychological effects identified with the use

of hallucinogenic drugs, the Plaintiffs have pointed to distinctions between hoasca and other

hallucinogens that may reduce the possibility that hoasca would induce adverse reactions. The

Plaintiffs note, for example, that the duration is shorter and the intensity more mild for hoasca

experiences, as compared to some other classic hallucinogens. Pltf. Exh. 12, 2nd Decl. of Grob,

at 3.

Further, the Plaintiffs emphasize that the circumstances under which an individual takes a

hallucinogenic drug, the "set and setting," are crucial in determining the kind of experience that

the individual has. See, e.g., Hrg. Tr. at 1182-83, testimony of Nichols. Referring to the 1993

hoasca study, Dr. Grob has commented that "[i]t was the consistent observation by members of

our research team that the UDV had constructed a ceremonial structure for their ritual use of

hoasca that optimized safety and minimized the likelihood of adverse consequences." Pltf. Exh.

11, Decl. of Grob, at 5. The Plaintiffs call attention to the fact that the UDV employs a range of

measures- from screening new church members for psychological instability to observing

members for problems during church ceremonies- to protect the safety of individuals ingesting

3 8

hoasca. Id.

Along with evidence about DMT and other hallucinogens in general, the Government has

presented evidence more specific to the hoasca ingested in the UDV. Both parties have devoted

a substantial amount of attention to a potential danger acknowledged even by the Plaintiffs

adverse drug interactions. This danger stems from the presence of the component of hoasca

contributed by banisteriopsis- beta carbolines. Deft. Exh. ZZ, Rpt. of Genser, at 11. Individuals

who drink hoasca while on certain medications may be at increased risk for developing serotonin

syndrome, a condition characterized by excessive levels of the neurotransmitter serotonin. For

example, several types of antidepressants, such as Prozac, contain selective serotonin reuptake

inhibitors (SSRI's). SSRI's trigger the release of serotonin or prevent its reuptake. Hrg. tr. at

253, testimony of Grob. Monoamine oxidase inhibitors interfere with the metabolization of

serotinin, and as described above, hoasca has MAO-inhibiting effects. Pltf. Exh. 11, Decl. of

Grob, at 6. Drinking hoasca while on an SSRI might create a dangerous interaction, because the

MAOI's in hoasca would hinder the metabolization of the greater levels of serotonin made

available through the use of the SSRI. In discussing the risk of serotonin syndrome, the

Government's experts noted that "irreversible" MAO inibitors- those that "bind to an MAO

molecule and destroy its function forever"- may interact harmfully with a number of medicines,

as well as with a chemical found in some common foods. Govt. Exh. ZZ, Rpt. of Genser, at 12.

Irreversible MAO inhibitors are often present in anti-depressant medications. Id.

Although the Plaintiffs concede that adverse drug interactions represent a risk connected

with hoasca use, they dispute that the risk is so substantial as to require the Government to

prohibit the religious consumption of the tea. The Plaintiffs' experts have cited the following

39

reasons for arguing that the Government has overstated the danger of adverse drug interactions

involving hoasca. First, the Plaintiffs maintain that hoasca does not contain irreversible MAO

inhibitors, the type associated with the most severe drug interactions. Dr. Grob has written that

that "[u]nlike pharmaceutical MAOI's ... the MAOI effect in ayahuasca is relatively mild, with

comparatively lesser degrees of risk for dangerous interactions." Pltf. Exh. 12, 2nd Decl. of

Grob, at 2. Dr. Grob has indicated that in the cases of reactions between ayahuasca and SSRI's

with which he is familiar, "the duration of the event was relatively brief when compared to more

severe cases of serotonin syndrome caused by combinations of SSRIs and pharmaceutical

irreversible MAOIs." Id. Similarly, Dr. Nichols testified for the Plaintiffs that "the possibility of

physiological consequences with the reversible MAO inhibitors is much reduced when compared

with the irreversible." Hrg. tr. a t 1219.

Second, the Plaintiffs have placed great emphasis on the attention that UDV leadership

has paid to the danger of adverse drug interactions. Dr. Grob and his colleague, Dr. J.C.

Callaway, first identified the potential for negative interactions between hoasca and SSRI's in a

scientific article published in 1998.

Pltf. Exh. 12, 2nd Dec]. of Grob, at 2; Callaway, J.C. &

Grob, C.S. (1998). Ayahuasca Preparations and Serotonin Reuptake Inhibitors: A Potential

Combination of Severe Adverse Interaction. J. Psychoactive Drugs, 30.

Deft. Exh. KK. Dr.

Grob has testified that the UDV has been receptive to concerns about adverse drug reactions. He

wrote in his second declaration that "[Hollowing discussions of our concerns with physicians of

the UDV, all prospective participants in ceremonial hoasca sessions have been carefully

interviewed to rule out the presence of ancillary medication that might induce adverse

interactions with hoasca." Pltf. Exh. 12, 2nd Deci. of Grob, at 6. See also Hrg. tr. at 254.

40

Finally, the Plaintiffs have attempted to downplay the risk of adverse reactions posed by

hoasca use, contending that serotonin syndrome is quite rare and is not experienced by all

individuals who ingest hoasca while taking SSRI's. Hrg. tr. a t 442-46, testimony of Glaucus

Brito. The Plaintiffs have portrayed the risk of serotonin syndrome associated with hoasca as

falling within the normal spectrum of concerns with drug interaction. They point out that

Government expert Dr. Genser stated, during the hearing, that he would be more troubled by a

person drinking grapefruit juice while taking a contraindicated drug than by a UDV member

taking hoasca in a ceremonial context. Hrg. tr. at 964.

The Government has identified other indications that the UDV's hoasca use is not as safe

as the Plaintiffs claim. Data collected by DEMEC, the medical-scientific department of the

Brazilian UDV, raises particular concern. Since 1996, DEMEC has gathered reports of cases of

psychological problems experienced by church members from the three most heavily populated

regions of Brazil. Hrg. tr. a t 425-26, testimony of Brito. The organization's records include

retrospective reports of cases that had occurred in the five years prior to 1996. Id. at 425. The

DEMEC documents disclose that there have been 24 incidents of psychosis among users of

hoasca in church ceremonies. Dr. Glaucus Brito, the director of DEMEC, testified that "[o]ut of

these 24 cases, we have one in which the tea acts as a trigger with no prior occurrences, and then

we have seven in which the tea acted as a resharpening mechanism for ... a prior mental

condition that was not identified, but it was identified during the course of the investigation by

the psychiatrist." Hrg. tr. at 424-25. Dr. Brito went on to explain that "out of these 24, there

were 11 in which there was no relationship whatsoever between the event and the use of the tea."

Id. at 425.

41

Dr. Genser has stated that the information contained in the DEMEC reports reinforces

his belief that hoasca use in the UDV presents a significant risk of psychotic incidents. Dr.

Genser testified that among the range of possible physical and psychological effects that could

be associated with hoasca use, "psychosis is definitely of most concern," in terms of both

severity and likelihood. Hrg. tr. a t 960-61. Even if the percentage of psychotic episodes

reported among UDV members was on the low end of the average range for the general

Brazilian population, he explained:

I would still be concerned because from all of the descriptions I have read, Dr.

Brito's deposition, the UDV, the DEMEC documents, Mr. Bronfman's

deposition, the UDV screens out a certain number of people with vulnerabilities

to psychosis and provides an environment that tends to encourage healthier

behaviors and healthier life-styles and provides a level of social connectedness for

the individual that- it's generally greater than the average member of the general

population. All of those factors would, I believe, tend to lower the expected

incidence of psychosis a good bit below that in the general population. So the

fact that the incidence of psychosis is still within range of the general population,

in combination with the fact that a number of those incidents reported are

attributed to the hoasca really strengthened my concern about the hoasca.

Hrg. tr. a t 862-63. Dr. Genser also stated that he would expect that cases of psychosis would be

underreported to the DEMEC monitoring system. Hrg. tr. at 861.

The Plaintiffs deny that available evidence suggests that hoasca use is likely to cause

severe psychotic events. Discussing the DEMEC documents, Dr. Grob commented that many of

the reported psychiatric problems "were relatively transient in nature and resolved." Hrg. tr. a t

251-52. In the "few cases of very serious mental illness," the individuals "appeared to have ...

long-standing problems insofar as their mental function." Id. at 252. Dr. Grob doubted whether

hoasca was a "key precipitant" in several of the reported episodes- "in many of these cases the

hoasca seemed to be just coincidental to it." Id. In addition, Dr. Grob noted that "given how

42

many people participate and how many years they have been trying to collect such data," the

reports represent "a very small number of cases." Id. at 252-53.

The Plaintiffs presented the testimony of Dr. Brito in support of their argument that the

rate of reported psychosis among UDV members in Brazil does not exceed the rate of psychosis

in the general population. About one percent of the world's population is believed to be

schizophrenic. Hrg. tr. a t 439. The DEMEC records were generated from observations of about

1,400 to 1,500 individuals participating in UDV ceremonies. Id. a t 438. If 13 of these people

experienced psychotic episodes linked in some way to hoasca, this would represent only .9

percent of the observed participants. Id. Dr. Brito stressed that the figure of .9 percent is based

on conservative methods of calculation. Id. a t 439-440. If the 1,400 people observed were

drinking the tea twice a month during the years for which data was collected, calculating the

number of psychotic events per number of hoasca exposures would result in a smaller

percentage. Id.

The Government argues that research on UDV members suggests that hoasca may have

negative physical effects as well as negative psychological effects. During the 1993 hoasca

study, investigators found that eight of the fifteen subjects in the test group had cardiac

irregularities, while only one subject in the control group had such irregularities. Hrg. tr. 504-

05, testimony of Brito. The Plaintiffs counter that cardiac alterations detected are not necessarily

linked with heart disease. For example, four of the eight test subjects had bradychardia, or slow

heartbeat, a condition that is associated with young athletes as well as people with certain types

of heart disease. Hrg. tr. a t 504, testimony of Brito; Hrg. tr. at 878-79, testimony of Genser.

In discussing his concerns about hoasca use in his expert report, Dr. Genser cited a recent

43

study conducted by Jordi Riba. J. Riba, et al. (2001). Subjective Effects and Tolerability of the

South American Beverage Ayahuasca in Healthy Volunteers. Psychopharmacology, 154, 85-95.

Deft. Exh. BBB. The researchers administered encapsulated ayahuasca, in increasing doses, to

six volunteers. Riba and his colleagues reported that "one volunteer experienced an intensely

dysphoric reaction with transient disorientation and anxiety at the medium dose and voluntarily

withdrew from the study." Id. The Plaintiffs have questioned the applicability of the Riba study

to an evaluation of the risks presented by the UDV's ceremonial consumption of hoasca. The

Plaintiffs have observed that the concentrations of DNIT and beta-carbolines in the ayahuasca

capsules administered by Riba were stronger than the concentrations in the hoasca seized from

the UDV. See Hrg. tr. at 871. The Plaintiffs also emphasize that the Riba study did not take

place within a religious context, and that the anxiety experienced by the one test subject was

only transient in nature. Id. a t 875-76.

In considering the evidence submitted by the parties, this Court has been struck by the

closeness of the questions of fact presented in this case. The Court has no doubt that in other

contexts, the risks that the Government has identified would be sufficient to support a decision

against allowing individuals to consume hoasca pending further study of the substance. Indeed,

even the scientific experts testifying on behalf of the Plaintiffs appear to recognize the need for

additional research into the health consequences of ceremonial hoasca use.

However, in this case, the Plaintiffs have raised a claim under a powerful statute passed

by Congress specifically to override a ruling by the Supreme Court of the United States. The

Government concedes, at this stage, that application of the CSA to the UDV's use of hoasca

imposes a substantial burden on the practice of the Plaintiffs' religion. By passing RFRA,

44

Congress required the Government to justify this imposition with a showing of a compelling

government interest. As to the subject of health risks, the evidence presented by the parties is,

essentially, in equipoise. This Court cannot find, in light of the closeness of the evidence, that

the Government has successfully carried its onerous burden on the issue of health risks to UDV

members.

b.

POTENTIAL FOR DIVERSION TO NON-RELIGIOUS USE

The Government alleges that it has a compelling interest not just in protecting the

physical and psychological health of the UDV members who wish to consume hoasca, but also

in ensuring of the safety of individuals who might ingest hoasca in a non-ceremonial

environment. If the UDV were allowed to use hoasca in its church services, the Government

argues, the tea could be diverted to potentially harmful uses in non-religious, unsupervised

settings. In contrast, the Plaintiffs take the positionas

articulated by their expert witness, Dr.

Mark Kleiman- that "[t]here is no currently available evidence to suggest that such

[diversionary] effects, were they to occur, would be large." Pltf. Exh. 16, decl. of Kleiman, at 9f

29.

The Government's analysis hinges on the factual premise that the hoasca used by the

UDV would be vulnerable to diversion. To help establish this premise, the Government

presented the expert opinions of Terrance Woodworth, Deputy Director of the Drug

Enforcement Administration's Office of Diversion Control. Mr. Woodworth identified "several

factors that are relevant to the assessment of a controlled substance's potential for diversion,"

including "the existence of an illicit market for the substance, . . . the existence of `marketing' or

publicity about the substance, and the form of the substance." Deft. exh. ZZZ, Rpt. of Terrance

45

Woodworth, at 3. In addition, Mr. Woodworth stated, "[a] substance's potential for diversion is

also affected by the opportunity for, and the cost of, diverting the substance, . . the level of

control placed upon the substance, the form of the substance, and the degree to which the

substance is in movement from place to place." Id. a t 3-4.

The Government contends that the extent of the illicit market for hoasca would be

determined, in large part, by whether hoasca has a significant potential for abuse. Dr. Donald

Jasinski, one of the Government's expert witnesses, addressed this question from the

pharmacological standpoint.'° He expressed the opinion that the risk of abuse associated with

hoasca is substantial. He supports his conclusion by pointing first to evidence about the

reinforcing effects of DMT and hoasca. Positive reinforcing effects "are the transient alterations

in mood, thinking, feeling, and perceptions produced by [a] drug," and these "effects include

elevation in mood, pleasant thoughts, feelings of well being and relation, and perceptions that

surroundings were more pleasant." Deft. Exh. VVV, Rpt. of Jasinski, at 7-8. These positive

effects, called "euphoria," are the primary factors leading individuals to begin using, and to

continue to use repeatedly, a drug of abuse. Id.

Dr. Jasinski noted that research on intravenous DMT indicates that the substance

produces euphoric effects. In Strassman's study, the investigators "described the onset of

psychological effects within two minutes with effects completely resolved within 30 minutes

with transient anxiety common, replaced by euphoria." Deft. Exh. VVV, Rpt. of Jasinski, at 9.

To the extent that preliminary research has been performed on ayahuasca, it appears that the

substance induces effects similar to those created by DMT, "although the effects are slower in

io Dr. Jasinski is a Professor of Medicine at the Johns Hopkins School of Medicine.

46

onset, milder in intensity, and longer in duration." The reported effects of ayahuasca "include

pleasant feelings and elevations in mood as well as dysphoric (i.e., anxiety-producing) changes."

Id.

Dr. Jasinski discussed not only the effects which suggest that hoasca would be subject to

abuse, but also some effects which might seem to limit hoasca abuse. In particular, hoasca

consumption often causes nausea and vomiting. While acknowledging that these effects may act

as a deterrent to some individuals, Dr. Jasinski observed that it is unclear how many users

experience nausea after taking hoasca. Hrg. tr. a t 997. Further, Dr. Jasinksi pointed out,

negative effects of substances do not necessarily outweigh the positive effects to the extent that

potential users are completely deterred from taking the substances. Deft. Exh. VVV, Rpt. of

Jasinski, at 9-10. In the case of ayahuasca, indigenous people in South America have ingested

the substance for centuries despite its, association with nausea and vomiting. Hrg. tr. at 999.

Dr. Jasinski stated that another source of evidence about the abuse potential of ayahuasca

is information known about LSD, a related drug. DMT produces pharmacological effects similar

to those produced by LSD. Although there are some differences between LSD and DMT, "[f]or

the purpose of assessing abuse potential ... the similarities ... outweigh the differences," and

"none of these differences necessarily detract from the abuse potential of DMT." Deft. Exh.

VVV, Rpt. of Jasinski, at 12. Dr. Jasinski believes that DMT's pharmacological similarity to

LSD, a drug recognized to have abuse potential, lends support to his opinion that ayahuasca has

susbtantial abuse potential.

While Dr. Jasinski focused on ayahuasca's abuse potential from a pharmacological

perspective, Mr. Woodworth testified about patterns of drug use in the United States that

47

indicate that ayahuasca carries a significant potential for abuse. During the evidentiary hearing

Mr. Woodworth cited, for example, National Household Survey on Drug Abuse results showing

that hallucinogen use in this country has risen substantially in recent years. Hrg. tr. at 1388;

Deft. Exh. CCCC. Mr. Woodworth expressed the opinion that "[t]he existence of the welldocumented

increasing interest in and demand for hallucinogens greatly increases the potential

for abuse- and consequently diversion- of any substance having hallucinogenic qualities." Deft.

Exh. ZZZ, Rpt. of Woodworth, at 4.

Mr. Woodworth cited several reasons, in addition to hoasca's abuse potential, for

believing that there would be a demand for hoasca in the illicit market. Advertisements for

hoasca on the internet reflect growing interest in the drug, he testified. Hrg. tr. at 1392; Rpt. at

5; Exh. EEEE. Increased publicity will, in turn, generate even more interest. Rpt. at 5. Hoasca

use in Europe, often a helpful indicator for determining the possibility of the diversion in the

United States, has risen substantially in recent years. Id. Mr. Woodworth observed that hoasca's

form- a tea- might contribute to the substance's draw. He reasons that "[d]rinking a cup of tea

may appear more appealing to some abusers than chewing a dried plant material, as is the case

with peyote, or shooting up, smoking, or snorting, as is done with many other substances of

abuse." Id. at 5-6.

Mr. Woodworth attributes the relatively low level of ayahuasca abuse in the United

States, at the present time, to the lack of availability of the plant components in this country. Id.

at 6. Mr. Woodworth explained that if the UDV is permitted to import hoasca for their religious

ceremonies, the greater physical presence of the substance in the United States will increase the

likelihood of diversion and abuse. Id. Further, the international transportation process itself will

48

expose the tea to illicit diversion. Controlled substances shipped in international commerce are

particularly vulnerable to diversion, whether through theft, loss, or fraud. Id, at 6-7. Controls

imposed by the country of origin may help reduce the risk of diversion, Hrg. tr. a t 1401, but in

this case, the Brazilian government does not carefully regulate the UDV's production of

ayahuasca. Hrg. tr. a t 1403.

The Government has suggested that there are specific characteristics of the UDV that

indicate that the hoasca shipped to the church would be prone to illegal diversion. For example,

Mr. Woodworth noted at the evidentiary hearing that the federal government has established a

cooperative, working relationship with the Native American Church in order to minimize the

diversion of peyote. However, Mr. Woodworth doubts whether the government could build a

similar relationship with the UDV:

. . . based on their lack of candor with regard to what has been brought in for the

last ten years. They have never contacted DEA. They have never attempted to

get registered with DEA. They have never tried to have hoasca exempted from

controlled status. And in the seizures, the documentation clearly was either

disguised or mislabeled.

Hrg. tr. at 1424. The Government further supported this argument through the introduction of

exhibits in the nature of UDV correspondence stressing the need for confidentiality about church

sessions, and shipping forms in which UDV leaders in the United States listed hoasca as "herbal

extract." See, e.g., Deft. Exhs. NNNNN and RRRRR.

The Plaintiffs dispute the fundamental premises of the Government's arguments on the

diversion issue. They maintain, first, that hoasca does not carry the significant potential for

abuse that the Government attributes to the substance. Dr. Kleiman, the Plaintiffs' expert, takes

the position that demand for hoasca would be relatively low, because of negative side effects

49

associated with the substance and because of the availability of substitutes for hoasca." Hrg. tr.

at 680. Dr. Kleiman disagrees with Dr. Jasinski about the deterrent effect of hoasca's nauseant

properties. Dr. Kleiman has written that "[w]hile many drug abusers tolerate a variety of

inconveniences and discomforts associated with the drugs they take and the ways in which they

take them, it is not reported that drug abusers as a class, or users of hallucinogens in particular,

enjoy nausea or vomiting." Pltf. Exh. 16, Decl. of Kleiman, at T 21. Dr. Kleiman explained that

individuals using hallucinogens may be even less inclined to tolerate nausea than users of other

types of drugs, by observing:

According to the research literature, hallucinogenic substances, including DMT,

score much lower on scales measuring reinforcement, and have much less

tendency to create dependency, than opiates, such as heroin. That is, those

exposed to hallucinogens once display far less motivation to experience second

and subsequent doses than those exposed to opiates, and a far smaller proportion

of them develop drug dependency as defined by accepted clinical criteria

("addiction"). This would suggest that a much smaller proportion of hallucinogen

users than of opiate users would be so strongly driven to seek out the drug

experience as to neglect the presence of side-effects.

Id. at 122.

Dr. Kleiman also stressed that individuals interested in experiencing the effects of oral

DMT would not necessarily demand the particular tea preparation employed in UDV

ceremonies. Rather, "any preparation that included DMT and a sufficient quantity of any

monoamine oxidase inhibitor would suffice." Id. a t 116. Plants that contain DMT and plants

that contain harmala alkaloids are available in the United States. Id. at 118. Some of the

alternative preparations combining DMT and haramala alkaloids do not induce nausea in the

way that hoasca does. Dr. Kleiman thus believes that "the widespread availability of

Dr. Kleiman is a Professor of Policy Studies at the University of California, Los

Angeles.

50

pharmacologically equivalent substitutes, some of them with fewer unwanted side-effects and

less apparent legal risk, would greatly reduce the motivation to divert the sacramental material

for purposes of drug abuse." Id. a t 125.

Dr. Kleiman also mentioned other factors that would tend to prevent widespread

diversion of hoasca from the UDV. First, the United States UDV is a very small church and

would not be importing huge quantities of tea from Brazil- only about 3,000 doses per year. Dr.

Kleiman commented that, "[e]ven if, by some happenstance, all 3,000 doses were diverted and

you would ask me as a drug policy expert: Did a big disaster just happen or not, I would say no,

not a very big disaster." Hrg. tr. at 696.

Second, the relative "thinness of the potential market" for hoasca would reduce the

likelihood of diversion that might occur with widely-used drugs. Hrg. tr. at 697. A casual thief

in possession of a pharmaceutical cocaine shipment would have little trouble locating a buyer.

In contrast, an individual would probably need to have some specific knowledge about the

extremely limited hoasca market in order to distribute the tea. According to Dr. Kleiman, the

nature of the hoasca market may thus discourage potential diversion of the tea to illicit use. Hrg.

tr. at 698-99.

Third, the bulky form of hoasca would deter diversion. The 3,000 doses of tea that the

UDV might import per year would produce several hundred liters of liquid. Dr. Kleiman

testified that there is an inverse relationship between the volume of a substance and its

susceptibility to theft. During the evidentiary hearing, he stated that "[t]he ease of stealing goes

up as the volume goes down. The larger the volume, the harder something is to steal." Hrg. tr.

a t 718.

5 1

Finally, Dr. Kleiman emphasized that the UDV has a strong motivation for keeping the

hoasca supply from being diverted. The tea "is considered a sacrament within the UDV, and its

use outside the ceremonial religious context of the church is considered by members of the UDV

to be sacrilegious." Pltf. Exh. 16, Decl. of Kleiman, at J[ 26. Dr. Kleiman believes that the

UDV's interest, under church doctrine, in preventing hoasca from being used improperly would

make it likely that the church would cooperate with governmental authorities to track down any

tea that is diverted. Hrg. tr. at 703.

As on the issue of health risks to UDV members, the parties have presented virtually

balanced evidence on the risk of diversion issue." Again, this Court finds that the Government

has failed to meet its difficult burden of showing a compelling interest in preventing the

diversion of hoasca to illicit use.

c.

1971 CONVENTION ON PSYCHOTROPIC SUBSTANCES

Upon its initial review of the parties' briefs, the Court believed that the Government's

strongest arguments for prohibiting the UDV's use of hoasca stemmed from concerns about the

safety of drinking the tea in a religious setting and the problems that might emerge if hoasca

were diverted to use in non-religious settings. For that reason, the Court asked the parties to

present evidence on these two subjects during the hearing held in October and November, 2001.

However, the Government has alleged a third compelling interest in addition to those addressed

at the hearing. According to the Government, the United States must apply the CSA's ban on

DMT to the UDV's use of hoasca in order to adhere "to an important international treaty

obligation." Response, at 16.

' ' The Court notes that the specificity of Dr. Kleiman's analysis may even tip the scale

slightly in favor of the Plaintiffs' position.

52

The United Nations Convention on Psychotropic Substances, represents an international

effort "to prevent and combat abuse of [psychotropic] substances and the illicit traffic to which it

ted Nations Convention on Psychotropic Substances, 1971, opened for signature gives rise."

February 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, at Preamble. The treaty was opened for

signature in 1971, entered into force in 1976, and was ratified by the United States in 1980.

Decl. of Robert Dalton, Exh. B. to Deft. Response, at 9[ 3. More than 160 nations are party to the

treaty, including Brazil. The treaty adopts a scheduling system for substances similar to that

found in the CSA. DMT is listed in Schedule 1, the category subject to the strictest controls.

Article 7 provides that parties to the treaty "[p]rohibit all use" of Schedule 1 substances, "except

for scientific and very limited medical purposes." Article 7(a). Parties must also "[p]rohibit

export and import" except under very restrictive conditions. Article 7(1).

The Government asserts that the Convention on Psychotropic Substances requires the

United States to ban the UDV's ceremonial consumption of hoasca. Article 3(1) of the treaty

makes clear that "a preparation is subject to the same measures of control as the psychotropic

substances which it contains." The treaty defines a preparation as "[a]ny solution or mixture, in

whatever physical state, containing one or more psychotropic substances." Article 1(f)(i). The

Government appears to contend that even if the treaty's prohibition on DMT did not include

hoasca tea, the provisions regarding "preparations" clearly extend the treaty's coverage to

hoasca.

The Government notes that the treaty permits exceptions for the religious use of drugs,

but argues that those exceptions are not applicable to the UDV. Article 32(4) reads:

5 3

A State on whose territory there are plants growing wild which contain

psychotropic substances from among those in Schedule I and which are

traditionally used by certain small, clearly determined groups in magical or

religious rites, may, at the time of signature, ratification or accession, make

reservations concerning these plants, in respect of the provisions of article 7,

except for the provisions relating to international trade.

The United States could not have relied on this provision to justify permitting the religious use of

hoasca because, among other reasons, the plant ingredients of hoasca are not indigenous to this

country. The Government argues that the treaty's specific allowance for religious exceptions

under particular circumstances implies that the treaty does not permit other exceptions for

religious use of scheduled substances.

Abiding by the terms of the Convention on Psychotropic Substances is, the Government

maintains, a compelling interest. In general, principles of international law instruct that nations

must honor the obligations imposed through treaties. For example, the Vienna Convention on

the Law of Treaties states that "[e]very treaty in force is binding upon the parties to it and must

be performed by them in good faith." Decl. of Dalton, Exh. B. to Deft. Response, at 110. The

Government takes the position that the United States has a particular interest in adhering to the

Convention on Psychotropic Substances. The United States calls on the treaty to elicit

cooperation from other nations in fighting international drug trafficking. According to the

Government, breaching the obligations set forth in the Convention would undermine the United

States' efforts to encourage other nations to comply with the agreement, and might interfere with

the willingness of other nations to form treaties with the United States in the future. Id. at 112.

In responding to the Government's position, the Plaintiffs challenge whether the

Convention on Psychotropic Substances actually applies to hoasca. The Plaintiffs point out that

there are several indications that plants containing scheduled hallucinogenic substances are not

54

necessarily prohibited under the treaty. The Commentary on the Convention on Psychotropic

Substances, published by the United Nations in 1976, suggests that the listing of a chemical

component in the treaty does not imply that a plant containing that chemical is likewise banned.

For example, the Commentary notes that:

Schedule I does not list any of the natural hallucinogenic materials in question,

but only chemical substances which constitute the active principles contained in

them. The inclusion in Schedule I of the active principle of a substance does not

mean that the substance itself is also included therein if it is a substance clearly

distinct from the substance constituting its active principle. Neither the crown

(fruit, mescal button) of the Peyote cactus nor the roots of the plant Mimosa

hostilis nor Psilocybe mushrooms themselves are included in Schedule I, but only

their respective active principles, mescaline. DMT and psilocybine.

Commentary, at 387. Elsewhere, the Commentary states that "[p]lants as such are not, and- it is

submitted- are also not likely to be, listed in Schedule I, but only some products obtained from

plants." Id. at 385.

Under the interpretation of the Convention favored by the Plaintiffs, the treaty included a

provision allowing nations to reserve some religious uses of indigenous plants so that parties

could ensure that any scheduling of plants in the future would not interfere with certain religious

practices; the reservation provision was not inserted because plants are presently illegal under

the treaty. The Commentary provides support for this analysis, noting that because there is a

possibility "that the fruit of the Peyote cactus, the roots of Mimosa hostilis, Psilocybe

mushrooms or other hallucinogenic plant parts used in traditional magical or religious rites will

in the future be placed in Schedule I," that parties could "make a reservation assuring them the

right to permit the continuation of the traditional use in question." Id. a t 387.

Certainly the United States Senate Committee on Foreign Relations, when it

recommended the ratification of the Convention, seemed to hold the view that plants were not

55

automatically covered through the listing of their chemical components. The Committee's report

stated that:

Since mescaline, a derivative of the peyote cactus, is included in Schedule I of the

Convention, and since the inclusion of peyote itself as an hallucinogenic

substance is possible in the future, the Committee accepted the Administration's

recommendation that the instrument of ratification include a reservation with

respect to peyote harvested and distributed for use by the Native American

Church in its religious rites.

S. Exec. Rept. No. 96-29, Convention on Psychotropic Substances, 96th Cong., 2d. Sess., at 4

(1980).

In addition, the Plaintiffs provide examples of how, in operation, the treaty seems to

reflect the understanding that the listing of a hallucinogenic chemical does not imply the listing

of a plant containing that chemical. While the United States made a reservation for the use of

peyote by the Native American Church within this country, under Article 32(4), it did not make a

reservation to export peyote for use by religious groups in other countries. However, the United

States apparently permits the exportation of peyote to Native American Church groups in

Canada. See 37 Tex. Admin. Code §§ 13.81-87; Exh. T to Pltf. Reply (list of Canadian Native

American Church organizations registered with the Texas Department of Public Safety.)

Exportation of a Schedule I substance for other than scientific or medical purposes would appear

to violate the Convention, in the absence of a reservation. The conduct of the parties to the

Convention, concerning the export of peyote, therefore suggests that peyote is not a scheduled

substance, although mescaline is.

The Plaintiffs present a very persuasive analysis as to why plants containing

hallucinogenic chemicals are not necessarily covered within Schedule I of the Convention. As

the Defendants have emphasized, though, and as this Court noted above, the treaty contains

5 6

special provisions regarding preparations: "a preparation is subject to the same measures of

control as the psychotropic substance which it contains." Article 3(1). In applying the treaty to

hoasca, it would be possible to conclude that even if Schedule I does not cover psychotria

viridis- the plant component of hoasca that contains DMT- Schedule I does extend to hoasca

tea under the treaty's "preparation" provision. To counter this proposition, the Plaintiffs have

offered strong arguments concerning why, if the treaty does not extend to psychotria viridis, the

treaty would not extend to a tea made from a combination of psychotria viridis and another plant.

First, the Plaintiffs rely on the statement in the Commentary to the Convention, quoted

above, that "[t]he inclusion in Schedule I of the active principle of a substance does not mean

that the substance itself is also included therein if it is a substance clearly distinct from the

substance constituting its active principle." Commentary, at 387. The Plaintiffs maintain that

hoasca is clearly distinct from DMT, just as psychotria viridis is, and that there are no

indications that the tea-making process produces a chemical separation of DMT.

Second, the Plaintiffs point out that the Commentary appears to assume that infusions

and beverages made from plants containing hallucinogenic substances do not fall within

Schedule I. In noting that "[n]either ... the roots of the plant Mimosa hostilis nor Psilocybe

mushrooms themselves are included in Schedule I, but only their respective active principles,"

the Commentary observes by footnote that "[a]n infusion of the roots is used" to consume

Mimosa hostilis, and that "[b]everages ... are used" to consume Psilocybe mushrooms.

Commentary, at 387; nn. 1227-28.

Based on the analysis offered by the Plaintiffs, this Court finds that the 1971 Convention

57

on Psychotropic Substances does not apply to the hoasca tea used by the UDW 3 Therefore, the

United States' interest in adhering to the Convention does not, in this case, represent a

compelling reason for extending the CSR's ban on DMT to the UDV's ceremonial hoasca use.

2.

LEAST RESTRICTIVE MEANS

Under RFRA, the Government must establish not only that a burden placed on an

individual's religious practice "is in furtherance of a compelling governmental interest," but also

that the burden "is the least restrictive means of furthering that compelling governmental

interest." 42 U.S.C. § 2000bb-1(b). In this case, the Court has concluded that the Government

has failed to carry its heavy burden of showing a compelling government interest in protecting

the health of UDV members using hoasca or in preventing the diversion of hoasca to illicit use.

In addition, the Government has not demonstrated that prohibiting the UDV's ceremonial use of

hoasca furthers an interest in adhering to the 1971 Convention on Psychotropic Substances,

because the treaty does not appear to extend to hoasca. The Court thus does not reach the

question of whether the Government has employed the least restrictive means of accomplishing

its stated goals.

IV.

REMAINING REQUIREMENTS FOR PRELIMINARY INJUNCTION

The Court has found that the Plaintiffs have demonstrated a substantial likelihood of

success as to their RFRA claim. As this Court noted in its discussion of the standard of review,

13

This Court acknowledges that its conclusion that the Convention on Psychotropic

Substances does not extend to hoasca, without explanation, may appear to conflict with its

interpretation of a similar provision in the CSA. However, the Convention significantly differs

from the CSA in that the Convention introduces on its face, through the reservation provision,

the proposition that plants may receive different treatment than chemical components. Given

this, the Court felt it appropriate to turn to the Commentary, which makes clear that, unlike the

CSA, the scheduling of a hallucinogenic chemical in the Convention does not imply the

scheduling of a plant that contains that chemical.

58

parties seeking preliminary injunctions must show not only a substantial likelihood of success on

the merits, but also that there will be "irreparable injury to the movant if the preliminary

injunction is denied," that "the threatened injury to the movant outweighs the injury to the other

party under the preliminary injunction," and that "the injunction is not adverse to the public

interest." Kikumura, 242 F.3d at 955.

With respect to the first of these other requirements, Tenth Circuit law indicates that the

violations of the religious exercise rights protected under RFRA represent irreparable injuries.

In Kikumura, the Tenth Circuit observed that "courts have held that a plaintiff satisfies the

irreparable harm analysis by alleging a violation of RFRA." Id. at 963. In support of this

proposition the Kikumura court quoted the Second Circuit, which has held that "although the

plaintiff's free exercise claim is statutory rather than constitutional, the denial of plaintiff's right

to the free exercise of his religious beliefs is a harm that cannot be adequately compensated

monetarily." Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996).

The Tenth Circuit's emphasis on the harms presented by the violation of religious rights,

reflected in the Kikumura case, also informs this Court's conclusions regarding whether the

Plaintiffs have met the remaining two requirements for preliminary injunction. This Court

acknowledges that the Government has presented a great deal of evidence suggesting that hoasca

may pose health risks to UDV members and may be subject to diversion to non-religious use.

However, in balancing the Government's concerns against the injury suffered by the Plaintiffs

when they are unable to consume hoasca in their religious ceremonies, this Court concludes that,

in light of the closeness of the parties' evidence regarding the safety of hoasca use and its

potential for diversion, the scale tips in the Plaintiffs' favor. Likewise, this Court believes that

59

an assessment of whether a preliminary injunction would be adverse to the public interest must

take into account the public's interest in the vindication of the religious freedoms protected

under RFRA- a statute which Congress, as the representative of the public, enacted specifically

to countermand a Supreme Court ruling. See, e.g., Elam Constr., Inc. v. Regional Transp. Dist.,

129 F.3d 1343, 1347 (10th Cir. 1997) (stating in the context of a Constitutional claim that "[t]he

public interest ... favors plaintiffs' assertion of their First Amendment rights.") This Court thus

concludes that the Plaintiffs have satisfied the requirements for preliminary injunction as to their

RFRA claim.

V. CONCLUSION

The Plaintiffs have failed to establish a likelihood of success on the merits of their claims

under Equal Protection principles, the Free Exercise of the First Amendment to the United States

Constitution, canons of statutory construction, and the international law of comity.

However,

the Court has concluded that the Plaintiffs are likely to succeed on the merits of their claim under

RFRA. In addition, the Plaintiffs have satisfied the other requirements for preliminary

injunction on the basis of their RFRA claim.

This Court has scheduled a hearing on August 19, 2002 to discuss with counsel issues

concerning the nature and implementation of the preliminary injunctive relief to which the

Plaintiffs are entitled. The Court will address the Plaintiffs' APA argument at that time, as well

as the Plaintiffs' contention that the Fourth and Fifth Amendments to the United States

Constitution require the Government to return to the UDV the hoasca confiscated by the

Government.

IT IS THEREFORE ORDERED that:

1)

The Plaintiffs' Motion for Preliminary Injunction (Doc. No. 10) is denied as to:

60

a)

Their claim under the First Amendment to the United States Constitution;

b)

Their claim that the CSA does not apply to hoasca;

c)

Their. claim that principles of international law require that the

Government permit the UDV's hoasca use; and

d)

Their claim under the Equal Protection Clause of the Fourteenth

Amendment, made applicable to federal statutes by the Due Process Clause of the Fifth

Amendment.

2)

The Plaintiffs' Motion for Preliminary Injunction is granted as to their claim

under the Religious Freedom Restoration Act;

3)

A hearing on the form of preliminary injunction is set for August 19, 2002 at 1:30

p.m.

No. 04A469

IN THE SUPREME COURT OF THE UNITED STATES

JOHN ASHCROFT, ET AL.,

Applicants,

v.

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, ET AL.,

Respondents.

RESPONSE IN OPPOSITION TO EMERGENCY STAY APPLICATION

INTRODUCTION

The parties opposing the stay application are a Christian religious organization, O Centro Espirita Beneficiente Uniao Do Vegetal, and several members of its leadership (collectively, “UDV”). The UDV is the small American branch of a religion founded many years ago in Brazil, which the Brazilian government officially recognizes and exempts from its controlled substances laws. The American branch includes about 140 members, who are both American and Brazilian. The UDV is well known in Brazil for the salutary effects it has had on the lives of its adherents and for its extensive and important charitable activities. A central and essential element of the UDV religion is its sacramental use of hoasca, an herbal tea in which is found a small amount of naturally-occurring dimethyltryptamine (“DMT”), an allegedly Schedule I controlled substance.^[1] To members of the UDV, hoasca is sacred and their sacramental use of hoasca connects them to God.^[2]

Attorney General Ashcroft and the other government applicants for a stay (collectively, “the government”) have never contested that UDV’s religion is bona fide, that their beliefs and practices are sincere, or that criminalization of UDV’s conduct substantially burdens UDV’s exercise of religion. See UDV v. Ashcroft, 282 F. Supp. 2d 1236, 1252 (D.N.M. 2002) (“[T]he Government did not dispute . . . that the Plaintiffs had established a prima facie case under RFRA. Stated differently, the government conceded . . . that the CSA imposes a substantial burden on Plaintiffs’ sincere exercise of religion.”). Given these concessions (which the evidence, in any event, fully supported), it became the government’s obligation to demonstrate, as required by the RFRA, that the government has a compelling interest in criminalizing UDV’s sacramental use of hoasca and has adopted the least restrictive means of furthering that interest. See 42 U.S.C. §2000bb-1 (forbidding the government to substantially burden a person’s exercise of religion unless the government “demonstrates that the application of the burden to the person” furthers a compelling interest in the least restrictive means); see also O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, No. 02-2323, 2004 WL 2569531, at *25 (10^th Cir. Nov. 12, 2004) (hereinafter “UDV”); Larsen v. US. Navy, No. 02-2005 (RMU), 2004 WL 2651373, at *12 (D.D.C. Nov. 18, 2004) (“To establish a prima facie case under the RFRA, a plaintiff must show that the government action at issue works a substantial burden on the plaintiff's ability to freely exercise his sincere religious beliefs.”). This case has not gone beyond the preliminary injunction stage. At that stage, however, if the issue is whether the government has a compelling interest and has adopted the least restrictive means, the government must still “shoulder its full . . . burden of proof.” Ashcroft v. ACLU, __ U.S. __, 124 S. Ct. 2783, 2794 (2004) (applying strict scrutiny to law aimed at preventing distribution of child pornography over the internet).^[3]

Mindful of RFRA’s requirements, the district court provided the parties with a full opportunity to litigate the RFRA issues. Before ruling on UDV’s motion for preliminary injunction, the court allowed the parties many months of discovery and held a two-week long evidentiary hearing.^[4] During discovery, the government took the depositions of all UDV’s expert and fact witnesses. At the hearing, the district court provided the government with unlimited opportunity to introduce evidence to demonstrate that the government had any compelling interest in criminalizing the ceremonial use of hoasca. Expert and lay witnesses testified for both parties regarding the pair of purported compelling interests the government chose to litigate–risks to health and safety and the likelihood of diversion for non-religious use.^[5]

The most that can be said of the government’s evidence is that it revealed that the government’s concerns about the health risks associated with ceremonial hoasca consumption were unsubstantiated, as were its concerns that UDV’s sacramental hoasca might be diverted to non-religious use.^[6] UDV responded with extensive expert^[7] and lay testimony that there were and had been no significant health risks associated with the ritual use of hoasca, here or in Brazil; that the risk of diversion was between negligible and non-existent, given the disagreeable and nauseating nature of hoasca and the ready availability of less disagreeable, less bulky and far more potent substances; and that no diversion ever occurred during the many years that UDV practiced its religion unmolested by the government. Furthermore, the government never attempted to explain why it has consistently taken the position that the sacramental use of peyote (another Schedule I controlled substance that, by statutory definition, also has “a high potential for abuse,” “no currently accepted medical use” and “a lack of accepted safety”) is good for the members of the Native American Church, is of no concern to the government, and is properly excepted from the CSA,^[8] but here takes the position–without even a cursory investigation, much less any scientific inquiry–that UDV’s use of a similar substance must be criminalized.

The district court concluded that “the Government has not shown that applying CSA’s prohibition on DMT to the UDV’s use of hoasca furthers a compelling interest,” rejecting both of the government’s factual assertions. Id. at 1255. The district court found that the government failed to prove that (1) “hoasca poses a serious health risk to the members of the UDV who drink the tea in a ceremonial setting”; and (2) “permitting members of the UDV to consume hoasca would lead to significant diversion of the substance to non-religious use.” Id. Based largely on these findings, the district court issued the preliminary injunction. Both a panel of the Tenth Circuit Court of Appeals and the Court of Appeals sitting en banc affirmed the district court. See UDV, 2004 WL 2569531, at *1; UDV v. Ashcroft, 342 F.3d 1170, 1172 (10^th Cir. 2003).

During the two years following the district court’s entry of its preliminary injunction, the government has neither requested a hearing on the merits nor attempted to bring any new evidence to the district court’s attention. Instead, the government has used the appeal process–including a request for rehearing en banc; a so-called emergency stay from two of the appellate judges who later dissented below (out of the thirteen sitting en banc);^[9] and the present stay application–to continue to burden UDV’s exercise of religion, in derogation of its RFRA right to be free from such a burden, unless and until the government carries its burden to show compelling interest and least restrictive means. In short, UDV has now suffered close to four years of the very harm that Congress sought to prevent by enacting RFRA. See 42 U.S.C. §2000bb(b) (“The purposes of this Act are . . . to restore the compelling interest test . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened.”); UDV, 2004 WL 2569531, at *29 (10th Cir. Nov. 12, 2004) (“[T]he district court, acknowledging its jurisdiction was founded upon RFRA, correctly recognized that the violation of one's right to the free exercise of religion necessarily constitutes irreparable harm.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) ("Courts have persuasively found that irreparable harm accompanies a substantial burden on the individual’s rights to the free exercise of religion under RFRA.").

The Court of Appeals and district court have, collectively, thrice rejected the four arguments the government advances here: (1) that the government need not carry the RFRA burden it might have to carry in other contexts because, when Congress placed DMT on the list of controlled substances, it necessarily determined that the government has a compelling interest in criminalizing its possession or distribution; (2) that the government need not prove a compelling interest in this case because it is axiomatic that the government has a compelling interest in the “uniform enforcement” of its controlled substances laws; (3) that because the district court found the evidence relating to health and safety was “in equipoise,” the government must have carried its burden for purposes of a preliminary injunction; and (4) that this Court should take judicial notice that the government has a compelling interest in enforcing against UDV the 1971 Convention on Psychotropic Substances which, according to the government, forbids the importation of hoasca, even for religious purposes. Stated more broadly, the government’s position is that because this case involves a controlled substance, the lower courts should have suspended RFRA’s requirement that the government actually adduce evidence of its purported compelling interests. The problem the government faces now is that its evidence does not support its arguments. As a result, the government now resorts to arguing that Congress’s findings relating to the dangers of controlled substances are somehow conclusive, even though RFRA explicitly instructs the courts to the contrary. See 42 U.S.C. §2000bb-3 (“This chapter applies to all Federal . . . law, and the implementation of that law, whether statutory or otherwise . . .”).

As amici^[10] argued eloquently below, the government’s arguments must be rejected if RFRA is to have any meaning:

Under RFRA, a court may not simply defer to the legislature’s general treatment of a problem – not to Congress’s general scheduling of a controlled substance, any more than to the state’s judgment in [Wisconsin v. Yoder, 506 U.S. 205 (1972)] that education is generally important, or the congressional judgment in [United States v. Hardman, 297 F.3d 1116 (10^th Cir. 2002)] that eagles generally need protection as an endangered species. The legislature’s determination that a law is generally important is not a determination that the law must be applied in this particular circumstance.

Brief of amici curiae, at 7, filed February 21, 2003, Reproduced as Appendix 3.

Thus, given the Congressional intent embodied in RFRA, the burden that RFRA places on the government, and the failure by the government to introduce any substantial evidence to substantiate a compelling interest in criminalizing UDV’s conduct, it was not surprising that the district court preliminarily enjoined the government from further interfering with UDV’s religious conduct or that both a panel of the Tenth Circuit Court of Appeals and the Tenth Circuit en banc affirmed.

Notwithstanding RFRA’s clear command, and notwithstanding the government’s failure to demonstrate any compelling interest in criminalizing UDV’s conduct, the government has until now managed to subvert Congress’s intent by obtaining two “emergency” stays of the district court’s preliminary injunction, once in the Court of Appeals and once before this Court. The government has accomplished this by seeking their stays at the last possible minute and arguing that a parade of horribles will ensue if a higher court does not step in to prevent the 140 members of UDV from practicing their religion.^[11] In this last-minute application for a so-called emergency stay, the government again mischaracterizes the law, misrepresents the record evidence, ignores factual findings made below, and hyperbolically reargues factual issues it either lost or failed to develop below.

ARGUMENT

“The principles that control a Circuit Justice’s consideration of in-chambers stay applications are well established.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J.). An applicant is entitled to a stay “only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below–both on the merits and on the proper interim disposition of the case–are correct.” Id. To overcome this presumption of correctness, the government must make “a four-part showing” Id. First, the government must “establish[] that there is a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction.” Id. (internal quotations, and quoted authority omitted). Second, the government must show “that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous.” Id. Third, the government must demonstrate “that irreparable harm is likely to result from the denial of the stay.” Id. Finally, “in a close case it may be appropriate to balance the equities --to explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Id. For the reasons explained below, the government has not made this showing and has not rebutted the presumption that the district court and the Tenth Circuit correctly concluded that UDV is entitled to preliminary injunctive relief, and that no stay should issue to delay that relief.

I. THIS COURT SHOULD DEFER TO THE DISTRICT COURT AND THE TENTH CIRCUIT COURT OF APPEALS, BOTH OF WHICH DENIED THE GOVERNMENT’S STAY REQUESTS.

When applying the four-part test governing stays, the Justices of this Court have given considerable deference to the conclusions of the lower courts regarding the need to stay the implementation of their own decisions. See Ruckelshaus v. Monsanto, 463 U.S. 1315, 1316 (1983) (Rehnquist, J.) (“a district court’s conclusion that a stay is unwarranted is entitled to considerable deference”); Rostker, 448 U.S. at 1308 (noting that there is a “presumption that the decisions below–both on the merits and on the proper interim disposition of the case–are correct”); Holtzman v. Schlesinger, 414 U.S. 1304, 1314-1315 (1973) (Marshall, J.) (giving “great weight” to a decision of the Second Circuit, which “carefully considered the issues presented and unanimously concluded that a stay was appropriate,” and concluding that the Second Circuit did not abuse its discretion); Graves v. Barnes, 405 U.S. 1201, 1203-04 (1972) (Powell, J.) (noting that Justices “have also weighed heavily the fact that the lower court refused to stay its order pending appeal, indicating that it was not sufficiently persuaded of the existence of potentially irreparable harm as a result of enforcement of its judgment in the interim”). Such deference is especially appropriate where, as here, the analyses of the lower courts are largely fact driven, see Block v. North Side Lumber, 473 U.S. 1307, 1307 (1985) (Rehnquist, J.) (denying application for stay because applicant could not justify disturbing lower courts’ resolution of a “highly factual issue”), and resolve “complex [] and importan[t] issues,” Holtzman, 414 U.S. at 1314.

In this case, after carefully considering all of the evidence, the district court found that the preliminary injunction would not harm the government and therefore decided not to stay the injunction:

The Plaintiffs correctly argue that the Defendants have not shown that the United States will suffer from any irreparable injury if the [1971] Convention is violated. The Plaintiffs note that the Defendants are merely speculating that the United States’ reputation as a leader in the war on drugs will be “tarnished.” Moreover, the detailed provisions of the Preliminary Injunction adequately address the Defendants’ concerns regarding the health risks of the UDV members and potential diversion. The Court, therefor, concludes that the Defendants have failed to show that they will suffer from irreparable injury if the Preliminary Injunction is not stayed pending appeal.

UDV v. Ashcroft, Mem. Op. and Order (D.N.M. Dec. 2, 2002), Appendix 2, at 6. Relying on the same imagined emergency the government is repeating here, the government rushed to two judges of the Tenth Circuit and persuaded them that a parade of horribles would commence immediately without a stay of the preliminary injunction. Although those two judges stayed the district court’s injunction, and that stay remained in place until the entire court decided the government’s appeal, the Tenth Circuit eventually vacated its stay, and refused the government’s application for another stay pending petition for certiorari. See Appendix D to Application.

Both of the lower courts were better situated to determine the need for a stay than is this Court; therefore, this Court should defer to their conclusions that a stay is unwarranted. The district court denied the stay after a full evidentiary hearing and months of briefing. After evaluating the thorough and thoughtful opinion of the district court and the extensive briefing by the parties, the Tenth Circuit ultimately agreed. This Court should not substitute its judgment for theirs particularly where, as here, a continuation of the stay will necessarily have the effect of further depriving the UDV and its members of rights enshrined in the First Amendment and codified in RFRA.

II. THIS CASE DOES NOT PRESENT THE COURT WITH AN OPPORTUNITY TO RESOLVE A CONFLICT AMONG THE CIRCUITS.

Contrary to the government’s argument, the Tenth Circuit’s en banc decision does not conflict with the decisions of other federal appellate courts. The government argues that because other courts, pre-RFRA, refused to create religious exceptions for the use by other persons of other controlled substances, the Tenth Circuit’s decision in this case is at odds with those other circuits. Application at 20-21. That is incorrect. The cases the government cites involved controlled substances that presented significant risks of diversion and, in many cases, religions that were not bona fide or involved claims that were patently absurd.^[12] Both the district court and the Tenth Circuit correctly rejected the argument that the decisions the government cites comprise a body of contrary case law. See UDV, 342 F.3d at 1184 (“The district court correctly distinguished, on two grounds, cases cited by the Government denying individuals’ free exercise challenges to drug laws. First, the sincerity of the Uniao do Vegetal’s faith and the substantial burden the CSA imposes on the practice of the religion are uncontested. By contrast, Courts in the other RFRA cases cited by the Government have found the plaintiff’s beliefs are not religious, are not sincerely held, or are not substantially burdened by governmental action.”); Id. at 1185 (“As the D.C. Circuit observed in acknowledging the legality of Native American Church’s use of peyote but refusing to grant a religious exemption to marijuana, Uniao do Vegetal’s use of hoasca occurs in a ‘traditional, precisely circumscribed ritual’ where the drug ‘itself is an object of worship’ and using the sacrament outside the religious context is a sacrilege.” (internal quotation marks and quoted authority omitted.)). As is shown by reading the decisions below and comparing them with the earlier cases on which the government rely to posit a conflict in the circuits, the differences in outcomes are fact-specific, and none of them reflect even trivial differences in the legal standards applied. Accordingly, there is no conflict among the circuits. Wisconsin Electric Co. v. Dumore Co., 282 U.S. 813 (1931) (dismissing writ of certiorari as improvidently granted where it appeared “that the asserted conflict in decisions arises from differences in states of fact, and not in the application of a principle of law”).

The government has nevertheless argued, both here and below, that these pre-RFRA, inapposite cases, were somehow incorporated into RFRA when Congress passed RFRA and incorporated “pre-Smith” decisional law. But Congress made clear that its purpose in enacting RFRA was to restore the legal standard applied in pre-Smith decisions, not to reinstate actual outcomes. See S. Rep. No. 103-111, at 9, reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (1993). Nothing in RFRA or its legislative history suggests that members of the UDV should be prohibited from practicing their religion simply because a different plaintiff, with different claims, involving a different controlled substance, and no bona fide religious beliefs, lost a free exercise case twenty years ago. A far better analog is the Native American Church, which uses a different Schedule I substance in its religious rituals, but which is for all intents and purposes indistinguishable from the UDV under any principled application of RFRA’s compelling interest test.^[13]

The only utterance, by any member of this court, that supports the government’s legal position in its application for stay, is by Justice O’Connor in Smith, where she states her view that the government always has a compelling interest in “prohibiting the possession of peyote by its citizens.” Application at 21, quoting Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 907 (O’Connor, J., concurring in judgment). Justice O’Connor is the sole member of this Court to make such a statement and Congress, in making RFRA’s burden

applicable to “all Federal law,” 42 U.S.C. § 2000bb-3, rejected any suggestion that controlled substances were to be beyond RFRA’s burden-shifting.

In sum, the government has no more demonstrated a conflict in the circuits respecting free exercise claims under RFRA than would a litigant who came before this Court to claim a “conflict in the circuits” because juries had reached different verdicts in cases involving only vaguely-related subject matter. The government has pointed to no case in any circuit in which a court applied a different legal standard to a RFRA claim, or a pre-Smith First Amendment claim. The government is only quibbling with the fact findings of the district court, and packaging those quibbles in the camouflage of a supposed conflict in the circuits.

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY ISSUING A PRELIMINARY INJUNCTION.

An appellate court reviews a district court’s grant or denial of a preliminary injunction for abuse of discretion. Ashcroft v. ACLU, 124 S. Ct. 2783, 2790 (2004). The district court’s findings of fact are not disturbed on appeal unless “clearly erroneous.” Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440 n.14 ( 2001). Even “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) (emphasis added). For the reasons explained below, this Court is unlikely to hold that the district court abused its discretion by issuing a preliminary injunction.

A. The District Court’s Findings Regarding the Absence of a Compelling Interest Are Not Clearly Erroneous.

The district court concluded that “[t]he Government has not shown that applying CSA’s prohibition on DMT to the UDV’s use of hoasca furthers a compelling interest.” UDV, 282 F. Supp. 2d at 1255. In support of this conclusion, the district court found that the government (1) failed to prove that “hoasca poses a serious health risk to the members of the UDV who drink the tea in a ceremonial setting,” and (2) failed to prove that “permitting members of the UDV to consume hoasca would lead to significant diversion of the substance to non-religious use.” Id. The government’s disagreement with these factual findings neither diminishes their significance nor renders them “clearly erroneous.” Cooper Indus., 532 U.S. at 440 n.14. Indeed, even if this Court were to conclude that there were “two permissible views of the evidence,” the district court’s choice of one over the other “cannot be clearly erroneous.” Anderson, 470 U.S. at 574 (emphasis added). It follows that the district court’s findings are dispositive with respect to the health and safety and diversion concerns the government contended were compelling.

The district court’s finding that the evidence relating to health and safety was “in equipoise” does not aid the government. RFRA places on the government the burdens of production and of persuasion, see 42 U.S.C. §2000bb-2(3), and the district court found that the government failed to carry its burden of persuasion here. Because the “the evidence is evenly balanced,” the government “must lose.” Director, Office of Workers’ Compensation Programs v. Greenwich Colleries, 512 U.S. 267, 281 (1994).

Even if UDV were to concede (which it does not) that the district court’s finding of “evidentiary equipoise” should be taken to mean that the government almost proved a compelling interest (which it did not, and which the district court did not suggest it had), the government could not prevail. Under its decision in Ashcroft v. ACLU, this Court should leave the preliminary injunction in place and allow the district court to conduct a trial on the merits. In Ashcroft, this Court, applying strict scrutiny, addressed the proper appellate treatment of a preliminary injunction, separately addressing a hypothetical case where the issue below is “close.” The district court in Ashcroft had issued a preliminary injunction after finding that the government failed to demonstrate a compelling interest and the adoption of least restrictive means in defending government action that impacted free speech. This Court held that even if the question “is close,” this Court “should uphold the [district court’s preliminary] injunction and remand for trial on the merits.” Ashcroft, 124 S. Ct. at 2791. That holding leaves no doubt that it would be inappropriate and unwise for this Court to delay the injunctive relief the lower courts concluded UDV is entitled to under RFRA.

B. The Legislative Findings Supporting the Controlled Substances Act Are Not Adequate Evidence Under RFRA of a Compelling Governmental Interest.

The government incorrectly argues that legislative findings regarding controlled substances are sufficient, standing alone, to satisfy the government’s compelling interest/least restrictive means burden. Application at 24-27. As the Tenth Circuit panel correctly found, because RFRA applies to all federal laws, the government must demonstrate a compelling interest as to all such laws that substantially burden the exercise of sincerely held religious beliefs. “[R]ecitation of the criteria for listing a substance on CSA Schedule I and of the general danger of hallucinogens does not, in this record, evince a compelling government interest under RFRA. . . . The Government ‘failed to build an adequate record’ demonstrating danger to Uniao do Vegetal members’ health from sacramental hoasca use.” UDV, 342 F.3d at 1181-82 (citation omitted). Furthermore, Congress enacted RFRA to provide clear statutory protection for religious practice in light of this Court’s decision in a case involving the religious use of Schedule 1 controlled substances, Employment Division, Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990), and Congress made no exception in RFRA for the religious use of controlled substances. Accordingly, it is disingenuous for the government to suggest that the mere fact that this case involves a tea containing an allegedly controlled substance is sufficient to establish a compelling interest. The same could be said of any federal act and, if the courts concurred, RFRA would become meaningless.

C. The Government Has No Abstract Compelling Interest In Enforcing the Controlled Substances Act Against UDV.

The government’s argument that a stay is necessary to protect the right of the government to prosecute violators of generally-applicable criminal laws ignores the irreparable harm that the members of UDV are undeniably suffering^[14] and elevates to irreparable status harm to the government that this Court has never recognized as such, at least in a context like this one. As this Court made clear in Ashcroft, the government’s criminal “enforcement choices” do not constitute a valid reason for withholding preliminary injunctive relief even if the issue were “close.” 124 S. Ct. at 2794. In Ashcroft this Court explained that if the price of protecting free speech was enjoining prosecutions pending a hearing on the merits, that was a small price to pay. “The starch in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” Id. (quoting United States v. Playboy Entertainment Group, 529 U.S. 803, 830 (2000)). Here, unlike in Ashcroft, the government is not enjoined from prosecuting everyone who violates any portion of the Controlled Substances Act. The government is only enjoined from prosecuting members of a small religious group, which has proven in court that their religious practices are not harmful to themselves or anyone else. The injunction in this case is, in fact, the very type of relief Congress contemplated would be available to a group such as the UDV in the event that the government failed to prove its compelling interest. In short, the government has failed to put any starch whatsoever in its claim that it will be irreparably harmed without a stay. See Rubin v. United States, 524 U.S. 1301 (1998) (Rehnquist, J.) (“An applicant for stay first must show irreparable harm if a stay is denied.”).^[15]

Between the lines of the government’s arguments is the proposition that while the application of RFRA to other areas of the law may be appropriate, it would be a mistake to take RFRA literally in the context of its application to the Controlled Substances Act or to a treaty. This, at least, is the clear implication of the government’s arguments that this Court should 1) give presumptive deference to Congress’s “findings” regarding controlled substances; 2) take judicial notice of the government’s compelling interest in the “uniform application” of the CSA; and 3) take judicial notice that the government has a compelling interest in adhering to the provisions of a treaty that it claims forbids the government from permitting the importation of hoasca. Only because it failed to carry its RFRA evidentiary burden below, with respect to the issues it chose to litigate, does the government now argue that its compelling interests should be presumed, rather than proved. The government is, of course, free to put on evidence during a hearing on the merits to support its assertions, but it is hardly consistent with either the spirit or letter of RFRA to allow the government to “demonstrate” these compelling interests by arguing them on appeal with abstract arguments about its needs.

Even if it were appropriate for the government to make these arguments on appeal–rather than prove, in the district court, that it has a compelling interest–these arguments are contrary to RFRA. Congress was fully aware when it passed RFRA that its provisions would apply to controlled substances. It made RFRA applicable to all federal law, and it understood that the issue of the religious use of controlled substances, including Schedule I controlled substances, would be subject to the provisions of RFRA. See H.R. Rep. No. 88, 103d Cong., 1^st Sess, at 5 (May 11, 1993) (recognizing that states^[16] could refuse to permit the use of peyote, but any such restriction would be subject to the RFRA balancing test). Significantly, the same House Report’s discussion of the religious use of peyote by the Native American Church includes the following statement: “In terms of the specific issue addressed in Smith, this bill would not mandate that all states permit the ceremonial use of peyote, but it would subject any such prohibition to the aforesaid balancing test.” Id.^[17]

Finally, in arguing that the courts must presume that the uniform enforcement of criminal laws and the enforcement of an allegedly-applicable treaty are compelling interests, the government completely ignores RFRA’s major concern, that there is a “vital public interest in protecting a citizen’s free exercise of religion.” UDV, 2004 WL 2569531, at *31 n.6. By its express terms, RFRA is intended to preclude the enforcement of any law that substantially burdens the exercise of religion, unless a finder of fact determines that the government has “demonstrated” that it has a compelling interest and the adoption of least restrictive means. 42 U.S.C. §2000bb-3(a). In this case, the district court held the very type of hearing Congress required in passing RFRA, made the type of factual determinations that Congress required district courts to make in applying RFRA, and, on the basis of those factual findings, provided the UDV with “appropriate relief against [the] government,” as RFRA requires. 42 U.S.C. §2000bb-1©. The district court carefully did its job under RFRA and the best that can be said of the government’s position in its application for stay is that the government doesn’t like the outcome or doesn’t like RFRA, or both.

D. The 1971 Convention Does Not Apply to Hoasca, and Even if it Did, the Government Has Failed to Show that Anyone Will Suffer Irreparable Harm If Plaintiffs Are Permitted to Import Hoasca for Ceremonial Use.

The government’s treaty argument is entirely meritless. The government asserts that the preliminary injunction requires the government to violate the 1971 Convention. Application at 3. The government is wrong because (1) the 1971 Convention does not apply to hoasca; (2) even if the treaty did apply to hoasca, the government has not carried its burden under RFRA of establishing a compelling interest in upholding this treaty specifically as to UDV; and (3) the 1971 Convention contains its own language that accommodates adherence to laws such as RFRA.

1. The 1971 Convention Does Not Apply to Hoasca.

Below, UDV attempted to put on evidence that the 1971 Convention on Psychotropic Substances did not apply in any respect to UDV’s religious use of hoasca. The government objected to, and successfully excluded from the hearing, any evidence relating to this issue on the grounds that this was not one of the issues on which the court requested evidence. UDV, 2004 WL 2569531, at *13.

Because RFRA applies to “all federal law . . . whether statutory or otherwise,” 42 U.S.C. § 2000bb-3(a), it requires that government “demonstrate,” by “building a record,” United States v. Hardman, 297 F.3d 1116, 1130 (10th Cir. 2002) (en banc), why the 1971 Convention must be applied to the UDV and its members. The government did not offer any evidence below to support such an assertion and objected to any effort by UDV to address this issue during the evidentiary hearing. It follows that the government, which has not built any evidentiary record, cannot have met its burden, as both the Tenth Circuit panel and the en banc courts found. UDV, 2004 WL 2569531, at *2; UDV, 342 F.2d at 1184.

After the district court found that the treaty did not apply to hoasca, the government complained for the first time that it had no opportunity to present evidence on this issue in its motion to that court requesting a stay of its injunction. In that motion, the government resurrected two cursory declarations it had submitted in opposition to the initial application for preliminary injunction to support its argument that it had now met its burden under RFRA of showing a compelling interest. The district court denied the request to stay the injunction, finding, inter alia, the declarations unpersuasive and holding that the “Court is not obliged to accept an agency interpretation which is unreasonable. . . . [and] the Court is not required to give due deference to an agency’s litigation position if that position is not a long-standing agency view.” Appendix 2 at 3.

When the government next sought a stay from the Tenth Circuit using the same declarations that had suddenly appeared as “evidence” on the treaty issue, the UDV responded with the declaration of Ambassador Herbert S. Okun. Appendix 4. Ambassador Herbert Okun is the diplomat who was responsible for representing the United States’ position on this treaty on the International Narcotics Control Board (INCB).

The government continues here its previous pattern of falsely asserting that the evidence it fought so hard to exclude was “nothing more than a private letter written decades after the Convention by one member of the International Narcotics Control Board–a body that has no official role in interpreting the terms of the Convention.” Application at 32, n.3. In fact, the evidence was a letter from Mr. Schaepe, the Executive Secretary to the INCB. It was the formal response of the INCB to a specific formal request from the Ministry of Health of the Netherlands regarding the legal status under the Convention of the same tea at issue in the instant case. The response could not have been more clear: “No plants (natural materials) containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.” Appendix 4, Exhibit B.

As Ambassador Okun explained–and contrary to the government’s misrepresentation–the INCB is the principal authority in interpreting all the international drug treaties. The opinion of Ambassador Okun, the Executive’s chosen representative for ten years to the INCB, affirming the position stated in the INCB executive secretary’s letter–that the Convention does not cover preparations such as hoasca–undeniably carries more weight than the “speculative testimony” of a lawyer in the State Department that falls significantly short of the “hard evidence” this Court requires of a defendant under RFRA. See Ashcroft, 124 S. Ct. at 2794 (upholding preliminary injunction against enforcement of Child Online Protection Act where there was “serious gap in the evidence as to the effectiveness of” less restrictive alternatives); Sable Communications v. FCC, 492 U.S. 115, 130 (1989) (dismissing conclusory statements that a complete ban on dial-a-porn messages was necessary to protect children because "the congressional record ... contain[ed] no evidence as to how effective or ineffective" less restrictive alternatives would be); see also UDV, 2004 WL 2569531 at *45 (noting that “[the Dalton] affidavit does not provide any information specific enough to be relevant in assessing the damage that would flow from an exemption for the UDV” and that it made “no mention of whether the International Narcotics Control Board deems hoasca to be within the Convention or whether there may be ways to comply with the Convention without a total ban”).

2. Protection of UDV’s Religious Practices Will Not Irreparably Harm the Government Because The Treaty Does Not Apply to Hoasca.

That the INCB executive secretary–after consultation with both the Scientific Section and the Legal Advisory Section of the United Nations office in charge of drug control–and the former U.S. member of the agency in charge of monitoring and implementing the Convention do not interpret the Convention to apply to hoasca fatally undercuts the government’s unsupported argument that the United States' "leadership role" will be undone in the eyes of the other signatory nations if it ignores its supposed treaty obligations.^[18] It further appears that of all the nations who are parties to the Convention, only these government defendants, in the litigation posture they have adopted in this case, purport to believe it applies to hoasca.

The government has repeated like a mantra its contention that “the 160 Nations” that are parties to the 1971 Convention share the government’s view, Application at 20, but the record is devoid of evidence to support that contention. No other country has interpreted the 1971 Convention to include hoasca, and Brazil–the country where hoasca originates and an original party to the 1971 Convention–has long allowed the use of hoasca for religious purposes. In short, the government has presented no evidence that if UDV’s ceremonial use of hoasca were protected under RFRA, that the standing of the United States among nations would be gravely injured.

3. Even if the 1971 Convention Applies to Hoasca, It Allows the Government to Adhere to RFRA.

The Convention explicitly permits countries to decline to apply its provisions if those provisions conflict with that country’s domestic laws. 1971 Convention, Art. 22. Even if a court were to decide that the 1971 Convention does apply to hoasca, but that RFRA requires a particular religious use to be excepted, the Convention anticipates and accommodates such exceptions. The plain language of the treaty–on which the government claims the courts must rely–could not be more clear: It states that its provisions are “[s]ubject to the constitutional limitations of a Party, its legal system and domestic law.” Art. 22, 1971 Convention.

Accordingly, the analysis is the same as it is for the applicability of the CSA to UDV. The government must prove that it has a compelling interest in abiding by the Convention, and that there is no less restrictive means of achieving that interest. If the government fails to make those showings, the Convention presents no separate bar to the accommodation of UDV’s religious practice.

E. The Government Has Failed to Establish that it Will Suffer Irreparable Harm if a Stay is Not Issued, and Even if the Court Concludes Otherwise, the Balance of Equities Favors Denying the Stay Application.

As explained above in the opinions of the lower courts, the government has failed to establish that the denial of a stay will result in irreparable harm to the government or anyone else, including the members of the UDV, and both courts below have held that UDV and its members are presently suffering irreparable harm. For the reasons set forth earlier in this memorandum, UDV respectfully submits that the government has failed to show that it is likely to persuade this Court either to grant certiorari or to reverse. If the Circuit Justice considering the present motion considered this to be a close question, however, then it would be appropriate to weigh the equities in considering whether a stay should be granted. Rostker, 448 U.S. at 1308. Given what is at stake for the two sides of this dispute, UDV respectfully submits that the balance is not a close one and that UDV and its members are suffering far greater, genuinely irreparable harm, than are the government defendants.

The government insists, however, that it will suffer irreparable harm without a stay, simply because it will be enjoined from prosecuting the plaintiffs. Application at 32. As UDV has repeatedly pointed out above, however, such an argument is not only contrary to the structure of RFRA, but is contrary to this Court’s recent holding in Ashcroft v. ACLU, in which this Court explicitly held that even a blanket ban on criminal prosecutions (as opposed to the ban in this case, which would only protect members of the UDV) does not constitute irreparable harm.

The government, however, insists that interfering with its prosecutorial authority will irreparably harm it, relying heavily on two opinions by Chief Justice Rehnquist–New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J.), and Turner, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J.) – for the proposition that irreparable harm automatically occurs whenever a court temporarily enjoins a government from enforcing its statutes. Application at 32- 33. But New Motor Vehicle and Turner are inapplicable here because they did not involve RFRA and involved applications to stay orders enjoining the government from enforcing “presumptively valid Act[s] of Congress,” Turner, 507 U.S. at 1302, on constitutional grounds. Those cases have no force where, as here, the injunction resolves the tension between two pieces of federal legislation–both of which are “presumptively valid,” Turner, 507 U.S. at 1302–in the very way that Congress required their resolution when it passed RFRA. Indeed, under the government’s interpretation of Turner and New Motor Vehicle, UDV’s or the government’s inability to enforce RFRA, another presumptively valid statute, would also constitute irreparable harm, justifying the denial of a stay.

Second, the government argues that it will suffer irreparable harm because “DMT is not produced . . . domestically,” so that leaving the injunction in place pending a trial on the merits “would forcibly introduce a hazardous hallucinogenic substance into the Country.” Application at 33. But UDV proved that many plants contain DMT– including a grass the Department of Agriculture recommends for roadside erosion control – grow throughout the United States and could be easily used to make a DMT-containing tea. But they are not sacred to the UDV’s members. See UDV, 282 F. Supp. 2d at 1247 (“During the hearing, the Plaintiffs presented evidence showing that certain plants growing in this country, including phalaris grass, contain DMT. The Plaintiffs' evidence included a document showing that the United States Department of Agriculture even recommends using one kind of phalaris for erosion control.”). This and the government’s other misstatements in its application confirm the wisdom of deferring to the lower courts, both of which refused to stay their decisions, based on their careful and thorough review the complex and voluminous record .

Because the government’s irreparable harm arguments are without merit, the government is not entitled to a stay, see, e.g., Ruckelshaus, 463 U.S. at 1316 (denying a stay should be denied “if the applicant fails to show irreparable injury from the denial of the stay”).

On the other arm of the scales are the UDV and its members. They have not been able to practice their religion since May, 1999, when the government seized their sacramental hoasca and threatened to prosecute them if they continued their religious practice. The celebration of the birth of Jesus is considered to be the highest and most revered of the annual Holy Days commemorated within the UDV. If the government's request for a stay is granted this will be the fifth year the UDV will not be permitted to offer communion services to its adherents. Despite decisions by the district court and two by the Tenth Circuit Court of Appeals, in which those courts determined that this small religion was entitled to judicial relief, the government has unconstitutionally continued to use their considerable powers to deny the UDV the first of all freedoms memorialized in our constitution’s Bill of Rights, and codified in RFRA.

Because the government has failed to make the requisite showing of irreparable harm, it is unnecessary to determine whether it would be likely to succeed in this Court. See Ruckelshaus v. Monsanto, 463 U.S. at 1316 (“An applicant’s likelihood of success on the merits need not be considered, however, if the applicant fails to show irreparable injury from the denial of the stay.”).

CONCLUSION

For the foregoing reasons, UDV and its members and representatives respectfully request that the Court deny the government’s emergency stay application.

Respectfully submitted,

FREEDMAN BOYD DANIELS

HOLLANDER & GOLDBERG P.A.

By:__________________________

Nancy Hollander

Counsel of Record

John W. Boyd

Zachary A. Ives

20 First Plaza, Suite 700 (87102)

P.O. Box 25326

Albuquerque, NM 87125

(505) 842-9960

Attorneys for O Centro Espirita Beneficiente Uniao Do Vegetal, et al.

CERTIFICATE OF SERVICE

I certify that on the 3rd day of December, 2004, this memorandum in opposition to the government’s emergency application for a temporary stay was filed via e-mail with the Clerk of the Supreme Court to Troy Cahill, Supreme Court Staff Attorney (Tcahill@scus.gov and tcahill@sc-us.gov), and served via e-mail upon the Solicitor General (supremectbriefs@usdoj.gov) and Rebecca Smith-Jackson (Rebecca.Smith-Jackson@usdoj.gov.

_________________________________

Nancy Hollander

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New Mexico corporation on its own behalf and on behalf of all its members in the United States; JEFFREY BRONFMAN, individually and as President of UDV-USA; DANIEL TUCKER, individually and as Vice-President of UDV-USA; CHRISTINA BARRETO, individually and as Secretary of UDV-USA; FERNANDO BARRETO, individually and as Treasurer of UDV-USA; CHRISTINE BERMAN; MITCHEL BERMAN; JUSSARA DE ALMEIDA DIAS, also known as Jussara Almeida Dias; PATRICIA DOMINGO; DAVID LENDERTS; DAVID MARTIN; MARIA EUGENIA PELAEZ; BRYAN REA; DON ST. JOHN; CARMEN TUCKER; SOLAR LAW, individually and as members of UDV-USA, Plaintiffs-Appellees, v. JOHN ASHCROFT, Attorney General of the United States; ASA HUTCHINSON, Administrator of the United States Drug, Enforcement Administration; PAUL H. O'NEILL, Secretary of the Department of Treasury of the United States; DAVID C. IGLESIAS, United States Attorney for the District of New Mexico; DAVID F. FRY, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico; all in their official capacities, Defendants-Appellants, CHRISTIAN LEGAL SOCIETY; THE NATIONAL ASSOCIATION OF THE EVANGELICALS; CLIFTON KIRKPATRICK, as the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); QUEENS FEDERATION OF CHURCHES, Amicus Curiae.

No. 02-2323

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2004 U.S. App. LEXIS 23781

November 12, 2004, Filed

PRIOR HISTORY:  [*1]  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-00-1647 JP/RLP).

COUNSEL: Gregory G. Katsas, Deputy Assistant Attorney General (David C. Iglesias, Attorney General, Peter D. Keisler, Assistant Attorney General, Michael Jay Singer, Attorney, Department of Justice and Matthew M. Collette, Attorney, Department of Justice with him of the briefs), of the Department of Justice, Washington, D.C., for Defendants-Appellants.

John W. Boyd (Nancy Hollander with him on the brief), of Freedom, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, New Mexico for Plaintiffs-Appellees.

Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Colby, of Center for Law and Religious Freedom, Christian Legal Society, Annandale, Virginia, filed an amicus curiae brief on behalf of Plaintiffs-Appellees.

JUDGES: Before TACHA, Chief Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges. MURPHY, Circuit Judge, joined in full by EBEL, KELLY, and O'BRIEN, Circuit Judges, and as to Part I by HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in part. SEYMOUR, Circuit [*2]  Judge, concurring McCONNELL.

OPINION:

ON REHEARING EN BANC

PER CURIAM.

I.

This matter is before the en banc court to review issues emanating from the panel opinion in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). The panel affirmed a preliminary injunction, granted under the Religious Freedom Restoration Act ("RFRA"), which enjoined the United States from relying on the Controlled Substances Act ("CSA") and the United Nations Convention on Psychotropic Substances ("Convention") to prohibit the sacramental use of hoasca by Uniao do Vegetal and its members (collectively "UDV"). This court granted rehearing to review the different standards by which we evaluate the grant of preliminary injunctions, and to decide how those standards should be applied in this case.

II.

The underlying facts relating to the parties and the issues are fully described in the panel opinion and are therefore unnecessary to reiterate here. UDV invoked RFRA, 43 U.S.C. § 2000bb-1, to obtain declaratory and injunctive relief which would prevent the government from prohibiting UDV's [*3]  importation, possession, and use of hoasca for religious purposes and from attempting to seize the substance or prosecute individual UDV members. n1 After an evidentiary hearing, the district court granted UDV's motion for a preliminary injunction pending a decision on the merits. The government appealed that decision, the panel affirmed, and we granted the en banc petition. n2

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n1 Hoasca is a liquid tea-like mixture made from the plants psychotria viridis and banisteriposis caapi. These plants are indigenous to Brazil. Psychotria viridis contains dimethyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention.


n2 This court granted an emergency stay of the preliminary injunction pending appeal. See O Centro Espirita v. Ashcroft, 314 F.3d 463 (10th Cir. 2002).


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III.

The en banc court is divided over the outcome of this case. Nevertheless, a majority of the court has voted to maintain a heightened standard for granting any of the three historically [*4]  disfavored preliminary injunctions. A different majority has voted to affirm the district court's entry of a preliminary injunction in this case.

A. Standards for Granting Disfavored Preliminary Injunctions

In SCFC ILC, Inc. v. Visa USA, Inc., this court identified the following three types of specifically disfavored preliminary injunctions and concluded that a movant must "satisfy an even heavier burden of showing that the four [preliminary injunction] factors . . . weigh heavily and compellingly in movant's favor before such an injunction may be issued": (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. 936 F.2d 1096, 1098-99 (10th Cir. 1991). With one important alteration, a majority of the en banc court has voted to affirm the core holding of SCFC ILC. Part I of the Opinion of Murphy, J., joined by Ebel, Kelly, Hartz, O'Brien, McConnell, and Tymkovich, JJ.; Part I of the Opinion of McConnell, J, joined by Hartz, O'Brien, and Tymkovich, JJ. Thus, if a movant [*5]  seeks a preliminary injunction that falls into one of the three categories identified in SCFC ILC, the movant must satisfy a heightened burden. The en banc court does, however, jettison that part of SCFC ILC which describes the showing the movant must make in such situations as "heavily and compellingly." SCFC ILC, 936 F.2d at 1098. Instead, the en banc court holds that courts in this Circuit must recognize that any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course. Furthermore, because a historically disfavored preliminary injunction operates outside of the normal parameters for interim relief, movants seeking such an injunction are not entitled to rely on this Circuit's modified- likelihood-of-success-on-the-merits standard. Instead, a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms, and may not rely on our modified likelihood-of-success-on-the-merits standard.

 [*6]  B. Grant of Preliminary Injunction in this Case

Although the reasons vary, a majority of the en banc court is of the view that the district court's entry of a preliminary injunction in this case should be affirmed. Part II of Opinion of Seymour, J., joined by Tacha, C.J., and Porfilio, Henry, Briscoe, Lucero, McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.

VI.

The decision of the United States District Court for the District of New Mexico to grant UDV's request for a preliminary injunction is hereby AFFIRMED. The temporary stay of the district court's preliminary injunction issued by this court pending resolution of this appeal is vacated.

CONCURBY: SEYMOUR; McCONNELL

CONCUR: SEYMOUR, Circuit Judge, concurring in part and dissenting in part, joined in full by TACHA, Chief Judge, PORFILIO, HENRY, BRISCOE, and LUCERO, Circuit Judges, and in Part II by McCONNELL and TYMKOVICH, Circuit Judges.

Like a majority of my colleagues, I am persuaded that the district court did not abuse its discretion in granting the preliminary injunction in this case. I respectfully dissent, however, from the majority's [*7]  conclusion that the movant for a preliminary injunction must satisfy a heightened burden when the proposed injunction will alter the status quo but the injunction is not also mandatory.

I

It is well established that "[a] preliminary injunction is an extraordinary remedy; it is the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). Its commonly asserted purpose is to "preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 68 L. Ed. 2d 175 (1981). See also 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2947 at 123 (2d ed. 1995) (purpose of preliminary injunction is to prevent non-movant from taking unilateral action which would prevent court from providing relief to the movant on the merits).

In making the equitable determination to grant or deny a preliminary injunction, courts tend to balance a variety of factors. We have stated generally that a court will grant preliminary relief only if the plaintiff shows "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury [*8]  to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). These factors provide guideposts for a court in its attempt to minimize any harm that would result from the grant or denial of preliminary relief. The manner by which a court considers the factors, the relative weight given to each, and the standards by which a movant is required to prove them, are driven by the special and unique circumstances of any given case.

As noted by Professor Dobbs:

The gist of the standards is probably easy to understand in common sense terms even if the expression is imperfect: the judge should grant or deny preliminary relief with the possibility in mind that an error might cause irreparable loss to either party. Consequently the judge should attempt to estimate the magnitude of that loss on each side and also the risk of error.

DAN B. DOBBS, LAW OF REMEDIES § 2.11(2) at 189 (2d ed. 1993) (emphasis added). American Hosp. Supply Corp. v. Hospital Prods. Ltd., 780 F.2d 589 (7th Cir. 1986), [*9]  epitomizes this approach, noting that when a district court is

asked to decide whether to grant or deny a preliminary injunction [it] must choose the course of action that will minimize the costs of being mistaken. . . . If the judge grants the preliminary injunction to a plaintiff who it later turns out is not entitled to any judicial relief - whose legal rights have not been violated - the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the injunction causes to the defendant while it is in effect. If the judge denies the preliminary injunction to a plaintiff who it later turns out is entitled to judicial relief, the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the denial of the preliminary injunction does to the plaintiff.

Id. at 593. Due to this inherently fluid, multi-faceted, and equitable process, we review a district court's decision to grant or deny injunctive relief for abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). In so doing, we should keep in mind that the district judge had to act in haste, that [*10]  he had to balance factors which, though they can be related in a neat formula, usually cannot be quantified, and that in dealing with the parties and their witnesses and counsel in the hectic atmosphere of a preliminary-injunction proceeding the judge may have developed a feel for the facts and equities that remote appellate judges cannot obtain from a transcript.

American Hosp. Supply Corp., 780 F.2d at 594-95. Thus "it is not enough that we think we would have acted differently in the district judge's shoes; we must have a strong conviction that he exceeded the permissible bounds of judgment." Id. at 595.

A.

In SCFC ILC, we held that movants requesting certain preliminary injunctions must meet a heightened standard instead of satisfying the ordinary preliminary injunction test. We detailed that a party who seeks an injunction which either changes the status quo, is mandatory rather than prohibitory, or provides the movant with substantially all the relief he would recover after a full trial on the merits, was required to "show that on balance, the four [preliminary injunction] factors weigh heavily and compellingly in his favor.  [*11]  " SCFC ILC, Inc., 936 F.2d at 1099 (emphasis added). We appear to be the only court which has adopted the specific approach of carving out three distinct categories of disfavored injunctions. Other courts have limited to two categories those preliminary injunctions deserving special scrutiny: injunctions which are mandatory or which provide the moving party with all the relief it seeks from a full trial on the merits. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980). n1 In order to bring our jurisprudence in closer accord with these other circuits, and because I am convinced it will cause less confusion to the parties and the district court, I would limit our heightened standard to those two categories of preliminary injunctions.

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n1 I disagree with Judge McConnell's characterization of the cases I have cited for the proposition that the other circuits limit their categories of disfavored injunctions to those which are mandatory and those which provide the movant with all the relief afforded on the merits. McConnell, J., op. at 6 n.4. As noted above, no other circuit follows our approach of identifying three categories of disfavored injunctions. Courts which speak of applying some form of heightened standard to preliminary injunctions that alter the status quo specifically define those types of injunctions as mandatory. See Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 33-34 (speaking broadly about applying a heightened standard to preliminary injunctions that alter the status quo, id. at 33, but then immediately defining with more specificity the two categories of disfavored injunctions as those which are mandatory, and those which provide all the relief sought on the merits, id. at 34); see also In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003) ("Mandatory preliminary injunctions [generally] do not preserve the status quo . . . .") (alteration in original); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) ("A party seeking a mandatory preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity."); Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980) ("Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief."); Anderson v. United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980) ("Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored.") (citations omitted). While Judge McConnell may disagree with the manner by which I think courts should consider the question of status quo, it cannot be said I am advocating an approach that is discordant from that employed by other courts. To the contrary, by separating out and adding injunctions that alter the status quo as a third category of disfavored injunctions, it is the majority that is out of step. See generally DOUGLASS LAYCOCK, MODERN AMERICAN REMEDIES 450 (3d ed. 2002); Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 WASH. & LEE L. REV. 109 (2001).


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In doing so, I do not denigrate the general notion that the purpose of a preliminary injunction is to preserve the status quo between the parties pending a full trial on the merits. But this general maxim should not be taken merely at face value or become a goal in and of itself. Rather, the very purpose of preserving the status quo by the grant of a preliminary injunction is to prevent irreparable harm pending a trial on the merits. See, e.g., In re Microsoft, 333 F.3d at 525 ("The traditional office of a preliminary injunction is to protect the status quo and prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits."); Matzke v. Block, 542 F. Supp. 1107, 1113 (D. Kan. 1982) ("The purpose of a preliminary injunction is two-fold: it protects the plaintiff from irreparable injury and it preserves the court's ability to decide the case on the merits."); 11A WRIGHT & MILLER, § 2947 at 121 ("a preliminary injunction is an injunction that is issued to protect plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision after [*13]  a trial on the merits").

Given the essential role prevention of irreparable harm plays in the grant of preliminary injunctive relief, n2 district courts should consider the question of altered status quo in light of how it impacts the balance of harms between the parties and the public interest, as well as considering what attendant institutional costs may accompany the grant of such relief. As the Fifth Circuit has said, "if the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury." Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974) (citations omitted). Other courts echo this refrain, noting that where preserving the status quo will perpetuate harm against the moving party, an order altering the status quo may be appropriate. See, e.g., Friends For All Children v. Lockheed Aircraft Corp., 241 U.S. App. D.C. 83, 746 F.2d 816, 830 n.21 (D.C. Cir. 1984); Crowley v. Local No. 82, Furniture & Piano Moving, 679 F.2d 978, 995 (1st Cir. 1982), reversed on other grounds, 476 U.S. 526 (1984); [*14]  see also 11A WRIGHT & MILLER § 2948 at 133-35. For these reasons, "the focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo." Canal Auth., 489 F.2d at 576. Thus a court's examination of the status quo should occur during the process of balancing the various interests and harms among the parties and the public.

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n2 In the course of deciding whether to grant preliminary injunctive relief, "courts have consistently noted that 'because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.'" Dominion Video Satellite v. EchoStar Satellite Corp., 356 F.3d 1256, 1260-61 (10th Cir. 2004) (quoting Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990), and listing other cases). Without a showing of irreparable harm, there exists no justification for granting the extraordinary remedy of injunctive relief prior to trial because any other harm can be compensated for by damages at the end of the trial.


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B.

Our circuit currently employs three different standards when granting preliminary injunctions. As a base line, we have articulated that a party's right to injunctive relief must be "clear and unequivocal." See SCFC ILC Inc., 936 F.2d at 1098 (citing Penn v. San Juan Hosp., 582 F.2d 1181, 1185 (10th Cir. 1975)). At one end of the spectrum, we have applied SCFC ILC's "heavily and compellingly" language to injunctions requiring heightened scrutiny. Id. at 1098-99. At the other end, we have adopted a modified approach for the "likelihood of success on the merits" aspect of the four part preliminary injunction test for certain circumstances. Under this alternative approach, if the moving party establishes that the last three factors of the test are in its favor, the party may ordinarily satisfy the first factor by "showing that questions going to the merits are so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999). Within this paradigm, and in accordance [*16]  with the principle that a preliminary injunction should preserve the parties' positions to prevent irreparable harm and allow the court to make a meaningful decision on the merits, the court's focus properly remains on the balance of relative harms between the parties.

In general, "emphasis on the balance of [irreparable harm to plaintiffs and defendants] results in a sliding scale that demands less of a showing of likelihood of success on the merits when the balance of hardships weighs strongly in favor of the plaintiff, and vice versa." In re Microsoft, 333 F.3d at 526. Thus, the more likely a movant is to succeed on the merits, "the less the balance of irreparable harms need favor the [movant's] position." Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). And, alternatively, "if there is only slight evidence that plaintiff will be injured in the absence of interlocutory relief, the showing that he is likely to prevail on the merits is particularly important." Canal Auth., 489 F.2d at 576-77. The rationality of this approach is evident: where there is a strong indication that the plaintiff is correct on the [*17]  merits, the less it is likely that the defendant will be harmed by the issuance of a preliminary injunction; where there is little likelihood a plaintiff will be irreparably harmed, preliminary relief is unwarranted unless it is virtually certain plaintiff will win on the merits.

Given the special considerations and potential administrative costs at stake when a court issues a mandatory preliminary injunction, we should more closely scrutinize whether the irreparable harm to the movant substantially outweighs any harm to the non-movant or to the public interest. The movant should clearly show the exigencies of the situation justify the rather unusual injunction. See Tom Doherty Assocs., 60 F.3d at 34 ("[A] mandatory injunction should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial or preliminary relief." (internal quotations omitted)); Anderson, 612 F.2d at 1114 (mandatory preliminary relief justified only where "facts and law clearly favor the moving party" or where "extreme or very serious damage will result"); In re Microsoft, 333 F.3d at 525 [*18]  (showing for preliminary mandatory relief "must be indisputably clear"); Wetzel, 635 F.2d at 286 (mandatory preliminary injunctions "should be granted only in those circumstances when the exigencies of the situation demand such relief").

Although a mandatory injunction should be granted only where the moving party makes a strong showing that all the preliminary injunction factors weigh in its favor, we should abandon use of the "heavily and compellingly" language employed in SCFC ILC, see 936 F.2d at 1098-99, which is not used by any other circuit. In addition, because a party seeking the grant of a mandatory preliminary injunction must make this stronger showing, the party should not be able to rely on our circuit's modified likelihood of success on the merits standard, even where the balance of harms favors the movant. Rather, the movant for a mandatory preliminary injunction must also establish a substantial likelihood of success on the merits. See Tom Doherty Assocs., 60 F.3d at 33-34 (party seeking mandatory injunction cannot rely solely on circuit's relaxed likelihood of success on merits standard); SCFC ILC, 936 F.2d at 1101 n.11 [*19]  (applicant for disfavored injunction unlikely to satisfy higher standard without proving likelihood of success on merits).

The same is true for injunctions that provide the movant with all the relief that could be obtained at trial. See SCFC ILC, 936 F.2d at 1099 (applying heightened standard to preliminary injunctions that provide the movant with all relief that could be obtained at trial). In this context, however, the term "all the relief to which a plaintiff may be entitled" must be supplemented by a further requirement that the effect of the order, once complied with, cannot be undone. A heightened standard can thus be justified when the issuance of an injunction will render a trial on the merits largely or partly meaningless, either because of temporal concerns, say, a case involving the live televising of an event scheduled for the day on which preliminary relief is granted, or because of the nature of the subject of the litigation, say, a case involving the disclosure of confidential information.

Tom Doherty Assocs., 60 F.3d at 35 (emphasis added). See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1249 (10th Cir. 2001) [*20]  (citing Tom Doherty Assocs. for this proposition). For example, while the preliminary injunction here may give the UDV all the relief it would obtain after a full trial on the merits, the district court's order can nonetheless be "undone" should the UDV ultimately be unsuccessful at trial. This situation is clearly different from the examples listed in Tom Doherty Assocs. Moreover, the grant of a preliminary injunction in this case does not "make it difficult or impossible to render a meaningful remedy," id., to the government. If the UDV does not prevail at trial, the government will be able to enforce the CSA against the church and its members and comply with the Convention.

In sum, we should limit our categories of injunctions requiring greater scrutiny to those which are mandatory or which afford the movant all the relief it seeks after a full trial on the merits, and abandon the use of SCFC ILC's "heavily and compellingly" language. In addition, a party seeking an injunction requiring greater scrutiny may not rely on our relaxed "success on the merits" standard but must make a strong showing that it has a likelihood of success on the merits and that the balance [*21]  of harms weighs in its favor. However, I depart from my colleagues who hold that a heightened standard should always be applied when the injunction will change the status quo. Rather, district courts should assess alteration of the status quo in light of its impact on the balance of harms among the parties and the public interest.

II

Turning to the question of whether the district court properly granted the preliminary injunction to the UDV, our court reviews the district court's grant of injunctive relief for abuse of discretion and "examines whether the district court committed error of law or relied on clearly erroneous fact findings." Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir. 1995). We also give due deference "to the district court's evaluation of the substance and credibility of testimony, affidavits, and other evidence. We will not challenge that evaluation unless it finds no support in the record, deviates from the appropriate legal standard, or follows from a plainly implausible, irrational or erroneous reading of the record." United States v. Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994).

The district court focused [*22]  the majority of its analysis on whether the UDV could satisfy the likelihood of success on the merits prong of the preliminary injunction test. See Kikumura, 242 F.3d at 955 (listing elements of preliminary injunction test). Because the government did not dispute for the purpose of the injunctive proceeding that its enforcement of the CSA and the United Nations Convention on Psychotropic Substances (Convention or treaty) imposed a substantial burden on the UDV's sincere exercise of religion, the UDV established a prima facie case of a RFRA violation. See id. at 960. To undercut this showing of likelihood of success, the government had the burden of establishing that "the challenged regulation furthers a compelling interest in the least restrictive manner." See 42 U.S.C. § 2000bb-1(b); United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996).

The government proffered three compelling interests - risks to the health of the UDV members by the use of hoasca, risk of diversion of hoasca for non- religious purposes, and compliance with the Convention. "Believing the Government's strongest [*23]  arguments for prohibiting Uniao do Vegetal's hoasca use to be health and diversion risks, the district court did not ask the parties to present evidence on the Convention at the hearing." O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1183 (10th Cir. 2003). After examining the parties' evidence on the first two issues, the court found the evidence to be in equipoise for each. The court also decided the treaty does not cover hoasca. The court therefore concluded the government had "failed to carry its heavy burden of showing a compelling interest in protecting the health of the UDV members using hoasca or in preventing the diversion of hoasca to illicit use." O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1269 (D.N.M. 2002). Hence, the court ruled the UDV had demonstrated a substantial likelihood of success on the merits.

The district court then turned to the remaining preliminary injunction factors and determined the UDV satisfied each. The court found the UDV established irreparable injury because its right to the free exercise of religion was being impaired. With respect to [*24]  harm to the government and the balance of harms, the court held that

in balancing the government's concerns against the injury suffered by the Plaintiffs when they are unable to consume hoasca in their religious ceremonies, the Court concludes that, in light of the closeness of the parties' evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the [church's] favor.

Id. at 1270. The court granted a preliminary injunction to the UDV pending a decision on the merits.

The government contends that the preliminary injunction granted by the district court is mandatory and changes the status quo, and that the district court erred in failing to require the UDV to make a stronger showing to succeed. I disagree. This case is unique in many respects because it involves a clash between two federal statutes, one based in the First Amendment to the Constitution and protecting an individual's free exercise of religion and the other serving the important governmental and public interests of protecting society against the importation and sale of illegal drugs. This case also serves as an example of how challenging it can be to determine [*25]  whether an injunction is mandatory as opposed to prohibitory, or whether it alters the status quo.

I am not persuaded the injunction here is mandatory. Rather, it temporarily prohibits the government from treating the UDV's sacramental use of hoasca as unlawful under the CSA or the treaty. It also orders the government not to

intercept or cause to be intercepted shipments of hoasca imported by the UDV for religious use, prosecute or threaten to prosecute the UDV, its members, or bona fide participants in UDV ceremonies for religious use of hoasca, or otherwise interfere with the religious use of hoasca by the UDV, its members, or bona fide participants in UDV ceremonies . . . .

Aplt. br., Add. B at 2.

The government contends the injunction is mandatory because it includes "36 separate provisions requiring specific affirmative action by the government to facilitate the UDV's use of hoasca." Aplt. Supp. En Banc br. at 20. In so arguing, the government fails to acknowledge that the additional provisions were added to the injunction by the district court in response to the government's insistence that the UDV be subject to some form of governmental oversight [*26]  in its importation and use of hoasca. In large measure, the injunction's terms detail how the UDV must comply with the importation and distribution regulations for controlled substances. The injunction outlines how the regulations should be specifically construed regarding the UDV and lists provisions from which the church should be exempted. The injunction's terms also make clear that while the UDV is required to comply with the regulations, the government cannot rely on potential technical violations of the regulations by the church, or an overly broad reading of the regulations, to bar the UDV's importation of hoasca. While the order's terms do not exactly mirror those proposed to the court by the government, nor are they nearly as broad as the government might have hoped, they nonetheless are in the injunction because the government demanded the UDV be subject to some form of regulatory control in the course of importing and distributing hoasca. In this regard, the order's terms outline how the church must comply with the regulations while still protecting the church's importation and use of its sacrament.

Similarly, while some of the injunction's provisions mandate [*27]  that the parties take specific actions, the order is nonetheless properly characterized as prohibitory. Read as a whole, the additional terms in the order mandate that the UDV comply with specific drug importation laws, while the provisions conversely permit the government to perform its regulatory functions with respect to the importation of controlled substances, up to but not including barring the UDV's use of hoasca for sacramental purposes. However, the overall effect of the injunction is to prohibit the government from enforcing the CSA and the treaty against the UDV.

There is no doubt that determining whether an injunction is mandatory as opposed to prohibitory can be vexing. In Abdul Wali v. Coughlin, the court recognized this difficulty but emphasized that the distinction between mandatory and prohibitory injunctions, however, cannot be drawn simply by reference to whether or not the status quo is to be maintained or upset. As suggested by the terminology used to describe them, these equitable cousins have been differentiated by examining whether the non-moving party is being ordered to perform an act, or refrain from performing. In many instances, this [*28]  distinction is more semantical than substantive. For to order a party to refrain from performing a given act is to limit his ability to perform any alternative act; similarly, an order to perform in a particular manner may be tantamount to a proscription against performing in any other.

Abdul Wali v. Coughlin, 754 F.2d 1015, 1025-26 (2d Cir. 1985), overruled on other grounds by O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 n.2, 96 L. Ed. 2d 282 (1987). In determining whether to define the contested injunction in the case before it as mandatory or prohibitory, the court in Abdul Wali looked to the gravamen of the plaintiff's complaint and found it did indeed seek to prohibit action on the part of the defendant, even though one could reasonably argue the injunction changed the status quo. Id. at 1026. So too in the case before us. The gravamen of the church's claim is to stop the government from enforcing the CSA against it and infringing on the use of its sacrament. Read in this light, the overall tone and intent of the order remains prohibitory because its purpose is to prohibit the government from interfering with the UDV's religious [*29]  practices.

With respect to the question of status quo, it is generally described as "the last peaceable uncontested status existing between the parties before the dispute developed." 11A WRIGHT & MILLER § 2948, at 136 n.14 (listing cases). See also Prairie Band of Potawatomi Indians, 253 F.3d at 1249; Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001); SCFC ILC, Inc., 936 F.2d at 1100 n.8. Here, however, we are faced with a conflict between two federal statutes, RFRA and the CSA, plus an international treaty, which collectively generate important competing status quos.

The status quo for the UDV was that it was practicing its religion through its importation and use of hoasca at religious ceremonies. I am not suggesting, as Judge Murphy argues, that the status quo is the UDV's legal right pursuant to RFRA to the free exercise of its religion. Rather, as a matter of fact the church was actively engaged in its religious practices. n3 Status quo for the government immediately prior to this litigation was its enforcement of the drug laws against the UDV in accordance with the CSA [*30]  and the Convention, which occurred after the government discovered the UDV was importing hoasca for religious purposes and exercised its prosecutorial discretion to stop that importation.

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n3 I also disagree with Judge Murphy's contention that both the church and the government "recognized that the importation and consumption of hoasca violated the CSA," Murphy, J., opin. at 10, and therefore the status quo was solely the government's enforcement of the CSA and compliance with the treaty. The UDV may have acted in a somewhat clandestine manner in the course of importing the hoasca and using it in its religious ceremonies. However, its importation and use of the tea was premised on its firmly held belief that such religious activity was in fact protected from government interference by its right to the free exercise of its religion.


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We are thus presented with two plausible status quos, each of them important. Moreover, since both parties contest the validity of the other's actions, it is difficult to [*31]  describe either position as "the last peaceable, uncontested status existing between the parties." The injunction granted by the district court can certainly be read to have altered the status quo for the government and thereby caused it harm. Conversely, failure of the court to grant the injunction would have altered the status quo for the church, causing it harm. As discussed above, injunctive relief may be warranted where preserving the status quo perpetuates harm against the moving party. See, e.g., Crowley, 679 F.2d at 995 (preliminary relief appropriate where perpetuation of status quo worked continuing harm to plaintiffs); Canal Auth., 489 F.2d at 576 (status quo should not be perpetuated where it causes irreparable harm to one of the parties); Sluiter v. Blue Cross & Blue Shield of Michigan, 979 F. Supp. 1131, 1136 (E.D. Mich. 1997) (prevention of irreparable harm, rather than maintenance of status quo, should guide court in granting mandatory injunction, especially where preserving status quo severely threatens lives of movants). And the competing harms that might arise from a change in the status quo can be fully addressed [*32]  under the balance of harms and public interest facets of the preliminary injunction test. See, e.g., Millennium Restaurants Group, Inc. v. City of Dallas, 181 F. Supp. 2d 659, 667 (N.D. Tex. 2001) (balancing irreparable harm to sexually oriented business' First Amendment right of free expression against temporary harm to city by virtue of injunction preventing city from revoking license of business); Mediplex of Massachusetts, Inc. v. Shalala, 39 F. Supp. 2d 88, 100-01 (D. Mass. 1999) (preliminary injunction appropriate, in part, where harm to nursing facility residents arising from government's intention to close facility outweighed more general harm to government); Canterbury Career School, Inc. v. Riley, 833 F. Supp. 1097, 1105-06 (D.N.J. 1993) (injunction properly issued where plaintiff would suffer loss of federal funding and accreditation as balanced against more general harm to government).

Turning to the district court's review of the four preliminary injunction factors and giving due deference to its weighing of the evidence, I am convinced for all of the reasons described by the district court, see supra at 13-15, and [*33]  set forth in the panel opinion, O Centro, 342 F.3d at 1179-87, that the court did not abuse its discretion in concluding the UDV has established the first preliminary injunction factor, a substantial likelihood of success on the merits of the case. Id. at 1187. n4 With respect to irreparable harm, the district court, acknowledging its jurisdiction was founded upon RFRA, correctly recognized that the violation of one's right to the free exercise of religion necessarily constitutes irreparable harm. See, e.g., Kikumura, 242 F.3d at 963 ("courts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA"); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) ("although plaintiff's free exercise claim is statutory rather than constitutional, the denial of the plaintiff's right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily"). The harm to the UDV from being denied the right to the use of a sacrament in its religious services is indisputably irreparable.

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n4 I do not, however, include footnote 2 of the panel majority opinion in my reasoning here. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1173 n.2 (10th Cir. 2003). The language in that footnote could lead one to conclude that a plaintiff's initial showing of a prima facie RFRA violation would satisfy the likelihood of success on the merits prong of the preliminary injunction test regardless of the government's successful articulation of a restrictively applied compelling interest. Such a conclusion would be incorrect; only an unrebutted prima facie showing could establish the likelihood of success on the merits of a RFRA claim. See id. at 1179-87 (discussion regarding UDV's showing likelihood of success on the merits by virtue of government's failure to establish compelling interest applied in least restrictive manner).


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The district court then balanced the irreparable harm to the UDV against the harm the government would suffer from a preliminary injunction prohibiting its enforcement of the CSA against the church's religious use of a controlled substance, and from its compliance with the Convention. As Judge McConnell so aptly observes, one cannot evaluate the balance of harm and public interest factors separately and isolated from Congress' own balancing of these factors in RFRA. See McConnell, J., opin. at 33-36. In RFRA, Congress determined that the balance of equities and public interest should weigh in favor of the free exercise of religion and that this settled balance should only be disrupted when the government can prove, by specific evidence, that its interests are compelling and its burdening of religious freedom is as limited as possible. See 42 U.S.C. § 2000bb-1(a)-(b).

Certainly the interests of the government as well as the more general public are harmed if the government is enjoined from enforcing the CSA against the general importation and sale of street drugs, or from complying with the treaty in this regard. But this case is not about enjoining [*35]  enforcement of the criminal laws against the use and importation of street drugs. Rather, it is about importing and using small quantities of a controlled substance in the structured atmosphere of a bona fide religious ceremony. In short, this case is about RFRA and the free exercise of religion, a right protected by the First Amendment to our Constitution. In this context, what must be assessed is not the more general harm which would arise if the government were enjoined from prosecuting the importation and sale of street drugs, but rather the harm resulting from a temporary injunction against prohibiting the controlled use of hoasca by the UDV in its religious ceremonies while the district court decides the issues at a full trial on the merits.

As asserted by the government, the relevant harms in this context are the risk of diversion of hoasca to non-religious uses and the health risks to the UDV members who ingest the tea. As the panel opinion explained, however, the district court found that the parties' evidence regarding health risks to the UDV members from using hoasca as a sacrament in their religious services was "in equipoise," and the evidence regarding the [*36]  risk of diversion to non-ceremonial users was "virtually balanced" or "may even . . . tip the scale slightly in favor of Plaintiffs' position." See O Centro, 342 F.3d at 1179-83 (citing district court and reviewing evidence).

I disagree with Judge Murphy's assertion that because plaintiffs have the burden of proof on the preliminary injunction factors they necessarily lose if the evidence is in equipoise on the question of harm to the government's asserted interests. See Murphy, J., opin. at 39-40. As Judge Murphy recognizes, a plaintiff seeking a preliminary injunction has the burden of showing that the harm to it outweighs any harm to the party to be enjoined or to the public interest. See Kikumura, 242 F.3d at 955. Here the harm to the UDV from being denied the right to freely exercise its religion, which under anyone's measure carries significant weight and is actually occurring, must be measured against the potential risks of diversion of hoasca to non-religious uses and harm to the health of church members consuming the hoasca. As the UDV established to the district court's satisfaction, neither of the potential harms [*37]  asserted by the government are more likely than not to occur. Thus, the balance is between actual irreparable harm to plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence.

Likewise, the harm resulting to the government from a violation of the Convention in this context is similar to the harm suffered as a result of the government's temporary inability to enforce the CSA against the church. As with the CSA, the treaty must be read in light of RFRA and the religious use of the controlled substance here. n5 While the general intent of the Convention was to prevent the illicit use and trafficking of psychotropic substances, it recognized that plants containing such substances were often used for legitimate religious purposes. It therefore permitted signatory nations to seek an exemption from the treaty for indigenous plants containing prohibited substances "traditionally used by certain small, clearly determined groups in magical or religious rites." See 1971 Convention on Psychotropic Substances, Art. 32(4), 32 U.S.T. 543. Indeed, the United States obtained such an exemption for peyote. See O Centro, 342 F.3d at 1175-76. [*38] 

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n5 As the panel opinion makes clear:

The Supreme Court has directed "that an Act of Congress . . . is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute, to the extent of conflict, renders the treaty null." Id. (quoting Reid v. Covert, 354 U.S. 1, 18, 1 L. Ed. 2d 1148) (1957) (plurality opinion)). See also Whitney v. Robertson, 124 U.S. 190, 194, 31 L. Ed. 386 (if treaty and statute conflict, "the one last in date will control the other").

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1183-84 (10th Cir. 2003).


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In light of the Convention's acknowledgment that the use of psychotropic substances in the course of religious rituals may warrant an exception from the treaty's terms, as well as the exemption granted to the United States for peyote, the government's argument that it will be significantly harmed by a preliminary injunction temporarily [*39]  restraining it from enforcing the treaty against the UDV does not ring entirely true. This injunction temporarily bars the government in small part from abiding by a treaty which contemplates the religious use of plants containing prohibited substances, in order that the UDV's exercise of its religious faith may be protected pending a full trial on the merits.

Moreover, given the competing status quos represented in this case - the church exercising its religion versus the government enforcing the drug laws and complying with the treaty - the district court's inclusion of the additional terms in the preliminary injunction, in which the government is permitted to perform most of its regulatory functions regarding the importation of this controlled substance, is a reasonable attempt to balance the harms suffered by either party until a full trial can be had on the merits. Viewed in this light, and given the conclusion that the UDV has a strong likelihood of succeeding on the merits of its claim under RFRA, the government's argument that it would be significantly harmed by a temporary injunction is considerably weakened.

With respect to harm to the public interest, there is an important [*40]  public interest in both the enforcement of our criminal drug laws and in compliance with our treaty commitments. But there is an equally strong public interest in a citizen's free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA and by the signatories to the Convention when they authorized exemptions for religious use of otherwise prohibited substances. n6 It cannot go without comment that Congress, in response to the Supreme Court's ruling in Employment Division v. Smith, 492 U.S. 872 (1990), enacted RFRA to overturn the holding in that case. As noted by the panel, the Supreme Court held in Smith that the "Free Exercise Clause of the First Amendment did not require the State of Oregon to exempt from its criminal drug laws the sacramental ingestion of peyote by members of the Native American Church." O Centro, 342 F.3d at 1176 (citing Smith, 492 U.S. at 885-890). According to Smith, "generally applicable laws . . . . [could] be applied to religious exercises regardless of whether the government [demonstrated] a compelling interest" for enforcing the law. Id. In response, Congress [*41]  passed RFRA to restore the compelling interest test articulated in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15 (1972). n7 Thus, pursuant to RFRA, there is a strong public interest in the free exercise of religion even where that interest may conflict with the CSA. n8

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n6 Lending their voice as amici curiae in support of the UDV's position are a variety of other religious organizations. Among these groups are the Christian Legal Society, the National Association of Evangelicals, Clifton Kirkpatrick, as the Stated Clerk of the General Assembly of the Presbyterian Church, and the Queens Federation of Churches, Inc. The presence of these varied groups as advocates for the UDV further highlights the vital public interest in protecting a citizen's free exercise of religion.


n7 The Supreme Court has subsequently found RFRA unconstitutional as applied to the states. City of Boerne v. Flores, 521 U.S. 507, 519, 138 L. Ed. 2d 624 (1997). However, RFRA is still applicable to the federal government. Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001).  [*42] 



n8 Judge Murphy relies heavily on Congress' specific findings that the importation and consumption of controlled substances are adverse to the public interest, see Murphy, J., opin. at 38-39, while totally ignoring the immediate and strong reaction Congress had to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990). The Congressional findings accompanying RFRA explicitly state that the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; . . . laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; . . . [and] governments should not substantially burden religious exercise without compelling justification.

42 U.S.C. § 2000bb(a)(1)-(3). Congress went on to express its displeasure with the Supreme Court's decision in Smith and stated that the compelling interest test set out in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15 (1972), struck a "sensible balance[] between religious liberty and competing prior governmental interests." 42 U.S.C. § 2000bb(a)(4)-(5).

In making this observation, I do not assert, as Judge Murphy suggests, that Congress' findings in conjunction with its passage of the CSA are totally irrelevant, or that the dissent erred in its reference to them. See Murphy, J., opin. at 39 n.13. Rather, it is my position that the findings articulated by Congress in the CSA cannot be viewed without reference to Congress' adamant affirmation that the free exercise of religion is an unalienable right to be burdened only under the most compelling of government justifications.


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For all the reasons stated above, even under the heightened standard affirmed by a majority of this court, the district court did not abuse its discretion in granting the injunction to the church. The court held that

in balancing the Government's concerns [regarding harm] against the injury suffered by the [church] when [its members are] unable to consume hoasca in their religious ceremonies, this Court concludes that, in light of the closeness of the parties' evidence regarding the safety of hoasca use and its potential for diversion, the scale tips in the [church's] favor.

O Centro, 282 F. Supp. 2d at 1270. It also noted that by issuing the injunction, the public's interest in the protection of religious freedoms would be furthered. Id. The district court's ruling is appropriate in light of Congress' implicit RFRA determination that the harm prevented and public interest served by protecting a citizen's free exercise of religion must be given controlling weight, barring the government's proof, by specific evidence, that its interests are more compelling. Here, the government failed to overcome Congress' determination.

McCONNELL, [*44]  J., joined by TYMKOVICH, J., concurring, and joined by HARTZ, J., and O'BRIEN, J., as to Part I.

This Court has traditionally required a heightened showing for preliminary injunctions in three "disfavored" categories: injunctions that disturb the status quo, mandatory injunctions, and injunctions that afford the movant substantially all the relief it may recover at the conclusion of a full trial on the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991). We heard this case en banc to consider whether to jettison the heightened standard for preliminary injunctions that disturb the status quo. A majority of this Court has concluded that there are reasons--not fully accounted for in the balance of harms analysis--for courts to disfavor preliminary injunctions that disturb the status quo, and thus reaffirms our traditional rule (with slight modification and clarification). See Opinion of Murphy, J., at 1-10. A different majority has concluded that, even under the heightened standard, Appellee O Centro Espirita Beneficiente Uniao do Vegetal ("UDV") is entitled to a preliminary injunction against enforcement of laws against [*45]  the possession and use of its sacramental substance, hoasca. Opinion of Seymour, J., at 28. I write separately to explain why both halves of this holding, in my opinion, are correct. n1

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n1 Judges Seymour and Murphy have each written opinions that concur in part of the holding of the en banc court and dissent from the other part. For convenience, I will refer to those portions of these opinions that dissent from the en banc holding as a "dissent," and to those portions that concur in the holding as a "concurrence." I join the per curiam opinion in its entirety. I join Part I of Judge Murphy's separate opinion, and Part II of Judge Seymour's separate opinion, on the understanding that the analysis holds "even under the heightened standard affirmed by a majority of this court." Opinion of Seymour, J., at 28.




- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -1. A Heightened Standard Should Apply to Preliminary Injunctions That Disturb the Status Quo



The Supreme Court has stated that preliminary injunctions have the "limited purpose" of "merely [*46]  [preserving] the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390, 395, 68 L. Ed. 2d 175 (1981). This emphasis on preserving the status quo is not the same as, and cannot be reduced to, minimizing irreparable harm to the parties during the pendency of litigation, as suggested by the dissent. See Opinion of Seymour, J., at 5-6. At the preliminary injunction stage, before there has been a trial on the merits, the function of the court is not to take whatever steps are necessary to prevent irreparable harm, but primarily to keep things as they were, until the court is able to determine the parties' respective legal rights. That is why, in addition to the four preliminary injunction factors of harm to the movant, balance of harm, public interest, and likelihood of success on the merits, this Court has required district courts to take into account whether preliminary relief would preserve or disturb the status quo. The burden of justifying preliminary relief is higher if it would disturb the status quo. SCFC ILC, Inc., 936 F.2d at 1098-99.

There is no reason to think that the "general [*47]  maxim" that "the purpose of a preliminary injunction is to preserve the status quo between the parties pending a full trial on the merits" is one that "should not be taken merely at face value" or disregarded except insofar as it "impacts the balance of harms between the parties and the public interest." Opinion of Seymour, J., at 6, 7. A judicial version of Hippocrates' ancient injunction to physicians - above all, to do no harm - counsels against forcing changes before there has been a determination of the parties' legal rights. The settled rule of our tradition is that losses should remain where they fall until an adequate legal or equitable justification for shifting them has been demonstrated.

Traditional equity practice held that the sole purpose of a preliminary injunction was to preserve the status quo during the pendency of litigation. See, e.g., Farmers' R.R. Co. v. Reno, Oil Creek & Pithole Ry. Co., 53 Pa. 224 (Pa. 1866) (dissolving an injunction that blocked defendants from continuing to use certain land in their possession because the sole purpose of a preliminary injunction is to preserve the status quo); Chicago, St. Paul & Kansas City R.R. Co. v. Kansas City, St. Joseph & Council Bluffs R.R. Co., 38 F. 58, 60 (C.C.W.D. Mo. 1889) [*48]  (noting that a higher standard applies to mandatory injunctions that disrupt the status quo); New Orleans & North Eastern R.R. Co. v. Mississippi, Terre-aux Boeufs & Lake R.R. Co., 36 La. Ann. 561 (La. 1884) (maintaining an injunction insofar as it maintained the status quo, but dissolving that portion that did not); Warner Bros. Pictures v. Gittone, 110 F.2d 292, 293 (3d Cir. 1940) (per curiam) ("Irreparable loss resulting from refusal to accord the plaintiff a new status, as distinguished from interference with rights previously enjoyed by him, does not furnish the basis for interlocutory relief."); Levy v. Rosen, 258 Ill. App. 262 (Ill. App. Ct. 1930) ("An interlocutory order is usually granted to preserve the status quo, but the order in this appeal did not do that, but changed the status quo. The entry of such order was clearly erroneous."); Gill v. Hudspeth County Conservation & Reclamation Dist. No. 1, 88 S.W.2d 517, 519 (Tex. Civ. App. 1935) ("The court's discretion should be exercised against the writ if its issuance would change the status quo."); Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So. 541 (Fla. 1931) [*49]  ("Since the object of a preliminary injunction is to preserve the status quo, the court will not grant such an order where its effect would be to change the status."); Gates v. Detroit & Mackinac Ry. Co., 151 Mich. 548, 115 N.W. 420, 421 (Mich. 1908) (dissolving that portion of a preliminary injunction that went beyond the status quo); Jones v. Dimes, 130 F. 638, 639 (D. Del. 1904) (relaxing the burden on the moving party when the requested injunction merely maintained the status quo);1 James L. High, A Treatise on the Law of Injunctions (Chicago: Callaghan & Co. 1890, 3d ed.) § 4 at 5 ("The sole object of an interlocutory injunction is to preserve the subject in controversy in its then condition, and, without determining any questions of right").

To be sure, it is sometimes necessary to require a party who has recently disturbed the status quo to reverse its actions. Such an injunction restores, rather than disturbs, the status quo ante, and is thus not an exception to the rule. "Status quo" does not mean the situation existing at the moment the law suit is filed, but the "last peaceable uncontested status existing between the parties before [*50]  the dispute developed." 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948 (2d ed. 1995). n2 Thus, courts of equity have long issued preliminary injunctions requiring parties to restore the status quo ante. Shanaman v. Yellow Cab Co., 491 Pa. 516, 421 A.2d 664, 667 (Pa. 1980) (reversing a preliminary injunction because "the purpose of a mandatory preliminary injunction is to restore the status quo" and the injunction actually disrupted that status); Morgan v. Smart, 88 S.W.2d 769, 772 (Tex. Civ. App. 1935) ("There are no real exceptions to the rule that the status quo will not be disturbed by a preliminary injunction, and when by such an injunction the possession of property is properly ordered to be restored it is not to disturb the status quo, but to avoid mistaking the true status and to avoid preserving a false one.").

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n2 This, too, is a traditional principle of equity practice. See, e.g., Fredericks v. Huber, 180 Pa. 572, 37 A. 90, 91 (Pa. 1897); Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So. 541, 544 (Fla. 1931); Bellows v. Ericson, 233 Minn. 320, 46 N.W.2d 654, 659 n.9 (Minn. 1951); State ex rel. McKinley Automotive, Inc. v. Oldham, 283 Ore. 511, 584 P.2d 741, 743 n.3 (Or. 1978); Weis v. Renbarger, 670 P.2d 609, 611 (Okla. Ct. App. 1983).


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In recent decades, most courts - and all federal courts of appeal - have come to recognize that there are cases in which preservation of the status quo may so clearly inflict irreparable harm on the movant, with so little probability of being upheld on the merits, that a preliminary injunction may be appropriate even though it requires a departure from the status quo. See, e.g., Canal Authority v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). n3 But preliminary injunctions that disturb the status quo, while no longer categorically forbidden, remain disfavored. Only one federal court of appeals has concluded that courts should simply strive to minimize irreparable harm, with no special attention to the status quo, as our dissenters suggest. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998); see Opinion of Seymour, J., at 12. n4

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n3 Some states continue to make preservation of the status quo a necessary requirement for all preliminary injunctions. See, e.g., Postma v. Jack Brown Buick, Inc., 157 Ill. 2d 391, 626 N.E.2d 199, 203, 193 Ill. Dec. 166 (Ill. 1993) (stating categorically that "preliminary injunctions are improper where they tend to change the status quo of the parties rather than preserve it"); County of Richland v. Simpkins, 348 S.C. 664, 560 S.E.2d 902, 906 (S.C. Ct. App. 2002) (noting that the sole purpose of a preliminary injunction is to preserve the status quo, and affirming the denial of an injunction that would change that status). [*52] 



n4 I am puzzled by the dissent's suggestion that abandoning heightened scrutiny for preliminary injunctions that disturb the status quo would "bring our jurisprudence in closer accord" with "other circuits." Opinion of Seymour, J., at 4-5, citing In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980). Certainly that is not true of the Second Circuit. In the very opinion cited by the dissent, Tom Doherty, the Second Circuit states:

We have required the movant to meet a higher standard where: (i) an injunction will alter, rather than maintain, the status quo, or (ii) an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.

60 F.3d at 33-34 (emphasis added). The other cited circuits blend the disfavored categories of mandatory injunctions and those that disturb the status quo, but continue to treat the latter as requiring a heightened showing. For example, the Third Circuit decision cited by the dissenters holds as follows:

A primary purpose of a preliminary injunction is maintenance of the status quo until a decision on the merits of a case is rendered. A mandatory preliminary injunction compelling issuance of a building permit fundamentally alters the status quo. . . . A party seeking a mandatory preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity."

Acierno v. New Castle County, 40 F.3d at 647, 653 (emphasis added; citation omitted). The other cited cases are to similar effect. See Anderson v. United States, 612 F.2d at 1114-15 ("Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party."); In re Microsoft Corporation Antitrust Litigation, 333 F.3d at 526 ("Mandatory preliminary injunctions [generally] do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief."), quoting Wetzel v. Edwards, 635 F.2d at 286.


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There are sound reasons of jurisprudence in support of the traditional view that preliminary injunctions that disturb the status quo require heightened justification. A preliminary injunction of any sort is an "extraordinary" and "drastic" remedy. See United States ex rel. Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989). Judicial power is inseparably connected with the judicial duty to decide cases and controversies by determining the parties' legal rights and obligations. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). A preliminary injunction is remarkable because it imposes a constraint on the enjoined party's actions in advance of any such determination. That is, a preliminary injunction forces a party to act or desist from acting, not because the law requires it, but because the law might require it. This is all the more striking because, given that many preliminary injunctions must be granted hurriedly and on the basis of very limited evidence, deciding whether to grant a preliminary injunction is normally to make a choice under conditions of grave uncertainty. See  [*54]  Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003).

It is one thing for a court to preserve its power to grant effectual relief by preventing parties from making unilateral and irremediable changes during the course of litigation, and quite another for a court to force the parties to make significant alterations in their practices before there has been time for a trial on the merits. See, e.g., Gittone, 110 F.2d at 293 ("The effect of the preliminary injunction which the court granted was not to preserve the status quo but rather to alter the prior status of the parties fundamentally. Such an alteration may be directed only after final hearing."); In re Marriage of Schwartz, 131 Ill. App. 3d 351, 475 N.E.2d 1077, 1079, 86 Ill. Dec. 698 (Ill. App. Ct. 1985) ("It is not the purpose of the preliminary injunction to determine controverted rights or decide the merits of the case. . . . A preliminary injunction is merely provisional in nature, its office being merely to preserve the status quo until a final hearing on the merits.").

Moreover, preserving the status quo enables the court to stay relatively neutral [*55]  in the underlying legal dispute. The restrictions placed on the parties can be understood as requiring only that they act in a manner consistent with the existence of a good-faith dispute about the relevant legal entitlements. The moving party is not given any rights, even temporarily, that would normally be his only if the legal dispute were resolved in his favor. For example, ownership disputes often raise concerns that the defendant in possession would overuse or waste the property before a complainant could regain possession through legal proceedings. Under those circumstances, equitable courts regularly enjoin the waste, ordering the defendant to preserve the property in statu quo. The general rule, however, is that except in the most exceptional cases, a court of equity cannot go beyond the status quo by putting the moving party into possession of the disputed property, even though, presumably, being deprived of the interim ability to enjoy the property would often constitute irreparable harm. See, e.g., Farmers' R.R. Co., supra; Morgan v. Smart, 88 S.W.2d 769, 771 (Tex. Civ. App. 1935) ("It is not the function of a preliminary injunction [*56]  to transfer the possession of land from one person to another pending an adjudication of the title, except in cases in which the possession has been forcibly or fraudulently obtained . . . [and the injunction is necessary so that] the original status of the property [may] be preserved pending the decision of the issue."), quoting Simms v. Reisner, 134 S.W. 278, 280 (Tex. Civ. App. 1911). See generally Mandatory Injunction Prior to Hearing of Case, 15 A.L.R.2d 213, §§ 22-23 (collecting dozens of cases on this issue).

Fundamentally, the reluctance to disturb the status quo prior to trial on the merits is an expression of judicial humility. As Judge Murphy points out, a court bears more direct moral responsibility for harms that result from its intervention than from its nonintervention, and more direct responsibility when it intervenes to change the status quo than when it intervenes to preserve it. See Opinion of Murphy, J., at 5. Moreover, like the doctrine of stare decisis, preserving the status quo serves to protect the settled expectations of the parties. Disrupting the status quo may provide a benefit to one party, but only by depriving [*57]  the other party of some right he previously enjoyed. Although the harm and the benefit may be of equivalent magnitude on paper, in reality, deprivation of a thing already possessed is felt more acutely than lack of a benefit only hoped for. As the Supreme Court observed in Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-83, 90 L. Ed. 2d 260 (1986), "denial of a future employment opportunity is not as intrusive as loss of an existing job." Percipient students of human nature have often made similar observations. David Hume, for example, wrote:

Such is the effect of custom, that it not only reconciles us to any thing we have long enjoy'd, but even gives us an affection for it, and makes us prefer it to other objects, which may be more valuable, but are less known to united States What has long lain under our eye, and has often been employ'd to our advantage, that we are always the most unwilling to part with; but can easily live without possessions, which we never have enjoy'd, and are not accustom'd to.

David Hume, A Treatise of Human Nature, bk. 3, pt. 2, § 3, para. 4 (1739). See also, e.g., Aristotle, Nichomachean Ethics, bk. IX, ch. 1, at [*58]  1164b17-19 (W.D. Ross trans.), in The Basic Works of Aristotle (Richard McKeon ed., 1941) ("For most things are not assessed at the same value by those who have them and those who want them; each class values highly what is its own . . . ."). Justice Holmes has justified the doctrine of adverse possession on these grounds:

The foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. . . . A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man.

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 477 (1897).

Notwithstanding the tendency of those trained in economics to view opportunity costs as equivalent to actual expenditures, modern social science research has confirmed the reality of "loss aversion" (the tendency to attach greater value to losses than to foregone gains of equal amount) and the [*59]  closely related "endowment effect" (the tendency to value already possessed goods more than prospective acquisitions). See, e.g., Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193 (1991); Amos Tversky & Daniel Kahneman, Loss Aversion in Riskless Choice: A Reference-Dependent Model, 106 Q.J. Econ. 1039 (1991); Daniel Kahneman et al., Experimental Tests of the Endowment Effect and the Coase Theorem, 98 J. Pol. Econ. 1352 (1990); Jack L. Knetsch & J.A. Sinden, Willingness to Pay and Compensation Demanded: Experimental Evidence of an Unexpected Disparity in Measures of Value, 99 Q.J. Econ. 507, 512-13 (1984). To take one of many illustrations, one study found that duck hunters would pay, on average, $ 247 to obtain the privilege of keeping a particular wetland undeveloped, but if they already had the right to block development, they would demand an average of $ 1,044 to give it up. Judd Hammack & Gardner M. Brown, Jr., Waterfowl and Wetlands: Toward Bioeconomic Analysis 26 (1974).

Moreover, adverse disruptions in the status quo carry along with them the cost and [*60]  difficulty associated with adjusting to change. These involve not only direct transition costs but also the costs associated with uncertainty, which manifest themselves in a reluctance to invest human or other capital in an enterprise where the returns could disappear at the drop of a judicial hat. Disruption is expensive. When a court requires a change in the status quo only to find that its grant of preliminary relief was mistaken and must be undone, the process is twice as disruptive as when the court preserves the status quo on a preliminary basis and later issues a final judgment requiring the change.

The status quo is also relevant to the credibility of the parties' claims of irreparable harm. It is difficult to measure irreparable harm, and either party's willingness to put up with a situation in the past can serve as an indication that the party's injury is not as serious as alleged, or that the party has implicitly consented to the supposed injury. See Heideman, 348 F.3d at 1191 ("The City has tolerated nude dancing establishments for many years . . . . This invites skepticism regarding the imperative for immediate implementation [of a new ordinance].  [*61]  "); Majorica, S.A. v. R.H. Macy & Co., 762 F.2d 7, 8 (2d Cir. 1985) (noting that while delay alone is not enough to constitute laches, it is ground for doubting a claim of irreparable harm). Plaintiffs, especially, have the burden of complaining of injuries promptly, before defendants come to rely on the status quo. "Equity aids the vigilant, not those who slumber on their rights." Allred v. Chynoweth, 990 F.2d 527, 536 n.6 (10th Cir. 1993); Standard Oil Co. of N.M. v. Standard Oil Co. of Cal., 56 F.2d 973, 975 (10th Cir.1932); Natural Res. Defendant Council v. Pena, 331 U.S. App. D.C. 198, 147 F.3d 1012, 1026 (D.C. Cir. 1998). Thus, when a plaintiff is complaining of irreparable injury from a long-established state of affairs, a court may naturally ask why, if the injury is so pressing as to warrant preliminary relief, the plaintiff waited so long before bringing a claim. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2946, at 113-16 (2d ed. 1995); Edward & John Burke, Ltd. v. Bishop, 144 F. 838, 839 (2d Cir. 1906); Savage v. Port Reading R.R. Co., 73 N.J. Eq. 308, 67 A. 436, 438 (N.J. Ch. 1907). [*62] 

The status quo is also a useful reference point because litigants often have incentives to engage in counterproductive strategic behavior. A defendant facing the loss of property, for example, has a natural incentive to extract as much of the value of the land as possible before losing possession, even in ways that limit the land's productivity for years to come. And even when doing so produces no advantages to the defendant, it is an unfortunate reality of human nature that many defendants would prefer to destroy the property in question than to let their adversary have the use of it, both out of spite and as a way of making the resort to the courts less attractive in the first place.

Likewise, plaintiffs have incentives to seek injunctions not only to avert irreparable harm to themselves, but also to impose costs on the other party. This, too, may be done out of spite, or because the higher the costs to the defendant in complying, the more pressure he will feel to "bargain desperately to buy his way out of the injunction." Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd., 780 F.2d 589, 594 (7th Cir. 1986). A preliminary injunction aims in part at achieving temporary [*63]  peace between the parties. However, if it substantially shifts the lines of conflict, it is more likely to function as a weapon in the plaintiff's arsenal than as a cease-fire. Preserving the last peaceable uncontested status of the parties maintains a position to which both parties at least tacitly consented before their dispute, and its concomitant perverse incentives, arose.

Without a heightened standard, these concerns will likely not be given due weight. In the context of the balance of harms analysis, it is all too easy to stop at comparing the absolute magnitudes of the parties' irreparable harms, without distinguishing between foregone gains and actual losses, and without considering whether granting an injunction implicates other institutional concerns about the proper role of the courts. Unless the district court self-consciously takes the nature of the injunction into account by applying a heightened standard, the four factors likely will lead to an overconfident approach to preliminary relief, increasing the cost and disruption from improvidently granted preliminary injunctions.

A particularly important category of cases where the status quo will often be determinative [*64]  of whether a court should provide preliminary relief is challenges to the constitutionality of statutes. When a statute is newly enacted, and its enforcement will restrict rights citizens previously had exercised and enjoyed, it is not uncommon for district courts to enjoin enforcement pending a determination of the merits of the constitutional issue. See, e.g., Eagle Books, Inc. v. Ritchie, 455 F. Supp. 73, 77-78 (D. Utah 1978); Reproductive Services v. Keating, 35 F. Supp. 2d 1332, 1337 (N.D. Okla. 1998); ACLU v. Johnson, 194 F.3d 1149, 1152 (10th Cir.1999); Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1076-77 (10th Cir. 2001); Elam Constr., Inc. v. Reg'l Transp. Dist., 129 F.3d 1343, 1347-48 (10th Cir. 1997) (per curiam). When a statute has long been on the books and enforced, however, it is exceedingly unusual for a litigant who challenges its constitutionality to obtain (or even to seek) a preliminary injunction against its continued enforcement. See, e.g., Walters v. Nat'l Ass'n of Radiation Survivors, 468 U.S. 1323, 1324, 82 L. Ed. 2d 908 (Rehnquist, Circuit Justice [*65]  1984) ("It would take more than the respondents have presented in their response . . . to persuade me that the action of a single District Judge declaring unconstitutional an Act of Congress that has been on the books for more than 120 years should not be stayed . . . ."). This is not because the balance of harms to the litigants is different. Presumably, the loss of constitutional rights from enforcement of an old statute is no less harmful or irreparable than from enforcement of a new. The dissent's suggested approach of considering the status quo only insofar as it bears on "the process of balancing the various interests and harms among the parties and the public," (Opinion of Seymour, J., at 7), without a heightened standard, is thus likely to yield the conclusion that it does not matter whether the statute is old or new. That would be a dramatic change in our practice. The reason for weighing the status quo is not to be found in the four preliminary injunction factors. It is rooted, instead, in the institutional concerns we have canvassed above.

I thus join in the en banc court's decision to continue to require litigants seeking a preliminary injunction, that would alter the [*66]  status quo, to meet a heightened burden of justification.

II. Does this Preliminary Injunction Satisfy the Heightened Standard?

This case satisfies even the heightened standard for preliminary injunctions. The applicable statute, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(b), sets a most demanding burden of proof for the government: the compelling interest test. The factual findings of the district court, which are not challenged on appeal, make it clear that the government has not and cannot meet that burden on this record, and that the balance of equities is overwhelmingly in favor of the movant. The en banc majority is therefore right, in my opinion, to affirm the district court's grant of a preliminary injunction.

Plaintiffs establish, and the government does not dispute, that enforcement of the CSA in this context would impose a substantial burden on a sincere exercise of religion. It is common ground that such a burden constitutes irreparable injury. The plaintiffs have thus established a prima facie case (relevant to the probability of success on the merits) and an irreparable injury (relevant to the balance of harms).  [*67]  It is also common ground that the evidence at the hearing regarding the government's assertions of an interest in the health of hoasca users and the prevention of diversion to recreational drug users was in "equipoise" and "virtually balanced." What is not common ground is the effect of evenly-balanced evidence regarding possible harms from hoasca use on UDV's ultimate likelihood of success on the merits, and on the balancing of the equities required for the grant of a preliminary injunction.

A

The dissent insists that the government is more likely to prevail on the merits than is UDV. In Judge Murphy's formulation, the government's interest in the uniform enforcement of drug laws and its interest in full compliance with the obligations imposed by international treaties are sufficient to meet the compelling interest standard. He is silent on whether, even if the government's interests in enforcement and compliance were adjudged compelling, the government has employed the least restrictive means at its disposal, as RFRA requires. 42 U.S.C. 2000bb-1(b)(2).

The dissent is premised on the view that "RFRA was never intended to result in [a] case-by-case [*68]  evaluation of the controlled substances laws, and the scheduling decisions made pursuant to those laws . . . . it is particularly improper for the court to assume such a function in this case." Opinion of Murphy, J., at 18. On the contrary, that is precisely what RFRA instructs courts to do. The dissent does not make clear whether it interprets RFRA as precluding "case-by-case evaluation" in all contexts, or whether this is a special rule for controlled substance cases. Neither interpretation is tenable.

In cases where federal law "substantially burdens" the exercise of religion, RFRA requires courts to determine whether "application of the burden" to a specific "person" is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b) (emphasis added). That cannot be done without a case-by-case evaluation. "Thus, under RFRA, a court does not consider the . . . regulation in its general application, but rather considers whether there is a compelling government reason, advanced in the least restrictive means, to apply the . . . regulation to the individual claimant." Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001) [*69]  (Murphy, J.). Accordingly, contrary to the dissent, Congress's general conclusion that DMT is dangerous in the abstract does not establish that the government has a compelling interest in prohibiting the consumption of hoasca under the conditions presented in this case.

Nor is there an implied exemption from RFRA in cases involving the controlled substances laws. By its terms, RFRA applies to "all Federal or State n5 law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [enactment of RFRA]," unless the law "explicitly excludes such application by reference to this chapter." 42 U.S.C. § 2000bb-3(a), (b). The CSA contains no such explicit exception.

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n5 As enacted, RFRA extended to both federal and state law, but as applied to state law, the Supreme Court held that RFRA exceeds the enumerated power of Congress under Section Five of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624 (1997). The Act remains constitutional and in effect as applied to federal law. Kikumura, 242 F.3d at 958-960.


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Judge Murphy argues that "courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement" of the drug laws. Opinion of Murphy, J., at 18. But the same may be said for application of RFRA to virtually any field of regulation that may conflict with religious exercise. Whatever our justifiably low opinion of our own competence, we are not free to decline to enforce the statute, which necessarily puts courts in the position of crafting religious exemptions to federal laws that burden religious exercise without sufficient justification.

The dissent's notion that the drug laws are impliedly exempt from RFRA scrutiny is especially surprising in light of the fact that the impetus for enactment of RFRA was the Supreme Court's decision in a case involving the sacramental use of a controlled substance. See Congressional Findings and Declaration of Purposes, 42 U.S.C. § 2000bb(a)(4) (criticizing Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990)). It may well be that most examples of enforcement of the drug laws will satisfy strict scrutiny under RFRA, see id. at 903-07 [*71]  (O'Connor, J., concurring) (applying strict scrutiny to, and upholding, the application of Oregon drug laws to the Native American Church's sacramental use of peyote), but it can scarcely be clearer that Congress intended such scrutiny to occur.

The dissent asserts that courts applying the compelling interest test both before and after RFRA have "routinely rejected religious exemptions from laws regulating controlled substances," and that "the same result should obtain in this case." Opinion of Murphy., J., at 20-21 (citing cases). There is no support in the cases cited, however, for the proposition that any religious use of any drug is outside the scope of RFRA (or, before Smith, free exercise) protection. Four of the five pre-RFRA cases cited involve the same group, the Ethiopian Zion Coptic Church, which advocated the use of marijuana "continually all day, through church services, through everything [they] do." Olsen v. Drug Enforcement Admin., 279 U.S. App. D.C. 1, 878 F.2d 1458, 1459 (D.C. 1989). The constant and uncircumscribed use of a drug presents different health risks and risks of diversion than the use of hoasca suggested by UDV. The significance [*72]  of these differences is underscored by the conviction of the Ethiopian Zion Coptic Church for the importation of twenty tons of marijuana. United States v. Rush, 738 F.2d 497, 501 (1st Cir. 1984). The post- RFRA cases cited offer no more support for the proposition that the findings of the CSA will always outweigh the interest in a particular religious use. In U.S. v. Brown, 1995 WL 732803, *2, for example, the Eighth Circuit found that the "broad use" of marijuana advocated by the church in question, which included supplying the drug to the sick and distributing it to anyone who wished it, including children with parental permission, made accommodation impossible. Both the unconstrained character of the proposed use and the popularity of marijuana affected the outcome in these cases: "the vast difference in demand for marijuana on the one hand and peyote on the other warranted the DEA's response [in declining to grant an exception.]" Olsen v. DEA at 1463-64. These cases accordingly provide very little insight into the appropriate result when the standard required by RFRA is applied to a case involving a tightly circumscribed use of a drug not [*73]  in widespread use.

Even assuming RFRA's compelling interest test applies, the dissent takes the position that "the government need turn only to express congressional findings concerning Schedule I drugs" to satisfy RFRA scrutiny. Opinion of Murphy, J., at 18. The dissent cites no authority for such an approach, and there is none. Congressional findings are entitled to respect, but they cannot be conclusive. RFRA requires the government to "demonstrate[]" that application of a challenged federal law to religious exercise satisfies strict scrutiny under RFRA. 42 U.S.C. § 2000bb-1(b). The term "demonstrates" is defined as "meeting the burdens of going forward with the evidence and of persuasion." Id., § 2000bb-2(3). Obviously, Congress contemplated the introduction of "evidence" pertaining to the justification of "application" of the law in the particular instance. If such a burden of proof could be satisfied by citing congressional finding in the preambles to statutes, without additional evidence, RFRA challenges would rarely succeed; congressional findings invariably tout the importance of the laws to which they are appended.

The dissent points to [*74]  two such congressional findings. First, Congress has made a general finding that the "illegal importation . . . and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." Opinion of Murphy, J., at 18-19. Second, Congress has placed DMT on the list of Schedule I controlled substances, which implies that it "has high potential for abuse and is not safe to consume even under the supervision of medical personnel." Id. These generalized expressions of the government's interest in prohibiting hoasca are very similar to the sweeping statements of interest that the Supreme Court found wanting in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15 (1972) - one of the cases to which Congress referred as illustrating the compelling interest test it wished to "restore" by means of RFRA. See § 2000bb(b)(1). In that case, the Supreme Court rejected the State of Wisconsin's "contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way":

Where fundamental claims of religious freedom [*75]  are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption.

406 U.S. at 221 (emphasis added). A similarly "searching examination" is required here, and can no more be satisfied by quotation of "sweeping claims" in statutory preambles than it could in Yoder.

If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed conclusion that the health risks or possibility of diversion are sufficient to outweigh free exercise concerns in this case, that conclusion would be entitled to great weight. But neither branch has done that. The two findings on which the dissent relies address the broad question of the dangers of all controlled substances, or all Schedule I substances, in the general run of cases. Such generalized statements are of very limited utility in evaluating the specific dangers of this substance under  [*76]  these circumstances, because the dangers associated with a substance may vary considerably from context to context.

Congress itself recognized this and gave the Attorney General authority to make exemptions from many of the CSA's requirements:

The Attorney General may, by regulation, waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.

21 U.S.C. § 822(d) (emphasis added). Thus, the CSA itself recognizes that, despite Congress's general findings about Schedule I substances, it may sometimes be "consistent with the public health and safety" to exempt certain people from its requirements. Indeed, the government evidently believed this to be true with respect to the Native American Church's peyote use, since it relied primarily on § 822(d) to authorize its regulation exempting the Native American Church from the CSA. See 21 C.F.R. § 1307.31 ("The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American [*77]  Church so using peyote are exempt from registration." (emphasis added)).

Judge Murphy responds that 21 U.S.C. § 822(d) should not be construed as giving the Attorney General authority to exempt religious groups other than the Native American Church from registration without specific authorization from Congress, because the "government's regulatory exemption for peyote . . . was at all times a product of congressional will." Opinion of Murphy, J., at 24. I think he is wrong about the scope of the Attorney General's authority under § 822(d), n6 but that is not the point. Even if in practice the only religious exemption authorized by § 822(d) were for the Native American Church, the plain text of that provision indicates Congress's belief that at least some use of substances controlled by the Act are "consistent with the public health and safety," despite the generalized congressional finding that any Schedule I substance is not safe to consume even under the supervision of medical personnel. 21 U.S.C. § 812(b)(1)(C). More recently, Congress has passed legislation requiring the states to allow the Native American Church to use peyote, [*78]  a Schedule I substance, in religious ceremonies. See American Indian Religious Freedom Act Amendments of 1994, 42 U.S.C. § 1996a. Congress's consistent position has been that concerns for religious freedom can sometimes outweigh risks that otherwise justify prohibiting Schedule I substances. Neither Congress nor the Executive has treated the CSA's general findings about Schedule I substances as precluding a particularized assessment of the risks involved in a specific sacramental use. Neither should we.

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n6 The text and legislative history of the CSA suggest that Congress meant to give the Attorney General authority to make other religious exemptions. See generally Native American Church v. United States, 468 F. Supp. 1247, 1249-51 (S.D.N.Y. 1979) (recounting the legislative history of the exemption for the Native American Church). As Judge Murphy notes, Opinion of Murphy, J., at 24, this precise question was presented in Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989). In that case, now-Justice Ginsburg refused to accept the DEA's position that it had the authority to exempt the Native American Church but no other churches, noting that the DEA's interpretation preferred one church above others in a way that would raise serious questions concerning the statute's constitutionality. See id. at 1461.


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Several factors make hoasca atypical in its likely health consequences. For instance, although DMT is typically taken intravenously or inhaled in the nonreligious settings that Congress presumably had in mind when it proscribed the substance, UDV members ingest it orally. There was some evidence at the hearing that the resulting doses are considerably smaller than typical intravenous or inhaled doses, and there has been very little study of the effects of orally ingested DMT. Furthermore, the fact that hoasca is a relatively uncommon substance used almost exclusively as part of a well-defined religious service makes an exemption for bona fide religious purposes less subject to abuse than if the religion required its constant consumption, or if the drug were a more widely used substance like marijuana or methamphetamine. Cf. Employment Div. v. Smith, 494 U.S. 872, 913-14, 108 L. Ed. 2d 876 (1990) (Blackmun, J., dissenting). These and other differences undermine any claim that, in placing DMT on Schedule I, Congress made a factual finding that should control our assessment of the relative dangerousness of hoasca.

Judge Murphy expresses disbelief that a [*80]  claimant's rights under RFRA could "turn on whether the adherent has a religious affinity for street drugs or more esoteric ones." Opinion of Murphy, J., at 26. Of course it is true that in theory, at least, it is possible to have the same religious interest in shooting heroin as in drinking hoasca. But one's rights under RFRA depend not only on the nature of the religious interest but also on the strength of the government's opposed interest. Here, the government's professed interests include avoiding diversion to nonreligious use and ensuring that a multitude of spurious free exercise claims do not hamstring its enforcement efforts. Given those concerns, I do not see why Judge Murphy finds it surprising that the extent of nonreligious use is relevant to the analysis. Indeed, it would be far more surprising if the differences between street drugs and more "esoteric" ones were irrelevant. See Olsen v. DEA, 878 F.2d 1458, 1464 (D.C. Cir. 1989) (R. Ginsburg, J.) ("We rest our decision [not to grant an exemption for religious marijuana consumption] on the immensity of the marijuana control problem in the United States . . . .").

Finally, the dissent also urges [*81]  that the government's interest in strict compliance with the 1971 United Nations Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543 (the "Convention") is sufficiently compelling to outweigh the burden imposed on UDV. The district court held that the Convention does not apply to the hoasca tea used by UDV. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1269 (D. New Mexico 2002). Judge Murphy categorically asserts the opposite, based on the "plain language of the Convention." Opinion of Murphy, J., at 30.

To reverse on the basis of the Convention would require us to go far beyond what the record can support. After reviewing the initial briefs filed by the parties, the district court determined that the government's strongest grounds for prohibiting UDV from using hoasca were based on concerns about the safety of drinking the tea and the risk of diversion to non-religious uses. 282 F. Supp. 2d at 1266. The court therefore limited evidence to those issues. Plaintiffs attempted to present evidence regarding the interpretation of the Convention by the International Narcotics Control Board,  [*82]  the international enforcing agency, including a letter by the Secretary of the Board stating that hoasca is not controlled under the Convention. The government objected on the ground that "We are now introducing testimony about whether or not ayahuasca is controlled under the International Convention. That is not one of the issues in this hearing." Supp. App. 1634. After discussion, the district court forbade questioning on the subject, and plaintiffs were unable to introduce evidence on the interpretation of the Convention by the Board. For this Court to attempt to interpret a complex treaty on the basis of its "plain language," without the benefit of its interpretive history, would be premature.

More to the point, the government utterly failed to carry its statutory burden (42 U.S.C. § 2000bb-1(b)(2)) of demonstrating that complete prohibition of hoasca is the "least restrictive means" of furthering its interest in compliance with the Convention, even assuming the Convention applies. Contrary to the dissent, neither the Convention's terms nor the practice of its interpretation is without flexibility when religious and other constitutional countervailing [*83]  interests are implicated. For example, the CSA provides a mechanism by which the government may protest a scheduling decision made under Article 2 of the Convention. When the government receives notice of a scheduling decision pursuant to Article 2 of the Convention, if the requirements demanded are not met by existing controls, the Secretary of State may "ask for a review by the Economic and Social Council of the United Nations" or "take appropriate action under the Convention to initiate proceedings to remove the drug or substance from the schedules under the Convention or to transfer the drug or substance to a schedule under the Convention different from the one specified in the schedule notice." 21 U.S.C. § 811(c)(3)(C)(iii) & (iv). Article 2 of the Convention creates a process for a signatory state to request a reconsideration of a scheduling decision already made, and in considering that request, the Commission is permitted to take into account "economic, social, legal, administrative and other factors it may consider relevant." Article 2 (1), (5), (6). The availability of these procedures suggests that compliance with the Convention is not wholly inconsistent [*84]  with the needs of signatory states to tailor some scheduling decisions to local requirements.

The Convention allows signatory states at the time of signature, ratification, or accession to make a reservation for indigenous plants traditionally used by "small, clearly determined groups in magical or religious rites." Article 32(4). To interpret the Convention rigidly, as having no possibility of accommodation for new religious groups (or groups newly arriving in the United States), for which no reservation was sought at the time, raises troubling constitutional concerns of denominational discrimination. See Olsen, 279 U.S. App. D.C. 1, 878 F.2d 1461. We should not lightly assume this is the correct interpretation of the Convention.

In the case of peyote, as the district court pointed out, 282 F. Supp. 2d at 1268, the United States permits the exportation of the substance to Native American Church groups in Canada, despite the fact that exportation of a Schedule I substance for other than scientific or medical purposes would appear to violate the Convention. n7 This suggests that, in practice, there is room for accommodation of the legitimate needs of [*85]  religious minority groups.

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n7 Peyote use by Native American Church groups within the United States is permitted by an express reservation to the Convention.


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RFRA places the burden on the government to demonstrate that application of the law to the particular religious exercise is the least restrictive means of furthering its interest. As far as the government's argument and the record reveal, the government has undertaken no steps to inquire regarding the status of hoasca or to work with the Economic and Social Council or the International Narcotics Control Board to find an acceptable accommodation. Rather, it has posited an unrealistically rigid interpretation of the Convention, attributed that interpretation to the United Nations, and then pointed to the United Nations as its excuse for not even making an effort to find a less restrictive approach.

To be sure, treaty compliance might well implicate governmental interests beyond the health and safety interests considered above. For example, if it could [*86]  be shown that if the United States failed to proscribe hoasca, another country would seize upon that as an excuse to refuse to proscribe another controlled substance of great importance to our national well-being, that might well constitute a compelling interest. But there is no way to know whether that is so without asking.

The government submitted the affidavit of one State Department lawyer stating in general terms that noncompliance with the treaty would interfere with the ability of the United States to demand cooperation from other nations. But while some level of deference to Congressional and Executive findings is appropriate in the context of foreign relations, this affidavit does not provide any information specific enough to be relevant in assessing the damage that would flow from an exemption for the UDV. Presumably that lawyer did not mean to say that all violations, from the smallest infraction to blatant disregard for the treaty as a whole, are equally damaging to the diplomatic interests of the United States. He made no mention of whether the International Narcotics Control Board deems hoasca to be within the Convention or whether there may be ways to comply with [*87]  the Convention without a total ban. Had the government presented an affidavit about the particular harms that this particular infraction would cause, it might be a different matter. See Ashcroft, 124 S. Ct. at 2794; Sable Communications v. FCC, 492 U.S. 115, 130, 106 L. Ed. 2d 93 (1989) (dismissing conclusory statements that a complete ban on dial-a-porn messages was necessary to protect children because "the congressional record . . . contained no evidence as to how effective or ineffective" less restrictive alternatives would be).

B

Even if UDV were likely to prevail on the merits, the dissent believes this to be one of those rare cases in which the balancing of the equities would dictate that the injunction not issue. See Opinion of Murphy, J., at 46. The disagreement rests, I think, on whether the statutory policies and burdens of proof set forth in RFRA should guide our consideration of each of the four preliminary injunction factors - or are relevant only to the first, the probability of success on the merits. I believe Judge Murphy's dissent is wrong to disregard RFRA in balancing the equities. That is not because RFRA implicitly [*88]  modifies the standards that apply to preliminary injunctions; I agree the normal standards remain in place unless Congress clearly manifests an intent to modify them. See Weinberger v. Romero- Barcelo, 456 U.S. 305, 320 (1982). Rather, the point is that the normal standards for injunctive relief require courts to weigh the private and public interests in free exercise on the one hand against the government's interests in regulation on the other, and RFRA is relevant to that weighing. When Congress has expressed its view of the proper balance between conflicting statutory policies, it is incumbent upon the courts to give effect to that view:

'Balancing the equities' when considering whether an injunction should issue, is lawyers' jargon for choosing between conflicting public interests. When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609-610, 96 L. Ed. 1153 (1952) (Frankfurter, J., concurring).

By "restor[ing" the compelling [*89]  interest test of Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15 (1972), 42 U.S.C. § 2000bb(b)(1), RFRA expressed Congress's judgment that the free exercise of religion outweighs all but the most compelling governmental interests. See 42 U.S.C. § 2000bb-1; Yoder, 406 U.S. at 215 ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). Once the plaintiff has established a prima facie case, RFRA places on the government the burden of demonstrating that application of the law is the least restrictive means of furthering its interest. 42 U.S.C. § 2000bb-1(b). n8 It is not that RFRA "legislatively overrules" the traditional principle that the moving party bears the burden of establishing the four preliminary injunction factors. See Opinion of Murphy, J., at 46. Rather, RFRA speaks to the quality of evidence and nature of the [*90]  interest that the government must put forward. RFRA makes it clear that only demonstrated interests of a compelling nature are sufficient to justify substantial burdens on religious exercise. Mere "equipoise" with respect to not- necessarily-compelling governmental interests is not enough.

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n8 In the free exercise/RFRA context, it is important to note that evidence of a compelling government interest rebuts the plaintiff's prima facie case not by disputing the plaintiff's interest in the religious practice but by outweighing it. Not all burden-shifting regimes share this feature. For instance, in the Title VII context, once a plaintiff is able to show disparate treatment of a similarly situated employee of another race, the burden shifts to the employer to show a nondiscriminatory motive for the differing treatment. To the extent that an employer makes such a showing, it does not present considerations that outweigh the plaintiff's interest in a nondiscriminatory workplace; rather, it undercuts the plaintiff's claim of discrimination. Thus, if an employer's case for a nondiscriminatory motive is in equipoise, then it follows that the plaintiff's case for discrimination is also in equipoise. In that context, the dissent's view of the consequences of equipoise as to the government's showing is well-founded; in the RFRA context, it seems mistaken.


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Thus, the dissent is wrong to assume that, with the evidence of the government's interest in "equipoise," the plaintiff "has not carried its burden of demonstrating that the third and fourth preliminary injunction factors . . . weigh in its favor." See Opinion of Murphy, J., at 17. The government's evidence, on this record, demonstrates only that there might be some adverse health consequences or risks of diversion associated with UDV's hoasca consumption. See Gov't Br. 45 (describing the government's interest as an interest in prohibiting substances that are "just as likely to be dangerous as . . . safe"). But under RFRA, mere possibilities, based on limited evidence supplemented by speculation, are insufficient to counterbalance the certain burden on religious practice caused by a flat prohibition on hoasca. See United States v. Hardman, 297 F.3d 1116, 1130 (10th Cir. 2002) (en banc); Sherbert, 374 U.S. at 407.

In effect, the dissent attempts to make an end run around RFRA's reinstatement of strict scrutiny by repackaging all of the arguments that would be relevant to the merits (where the presumption of invalidity would clearly [*92]  apply) as arguments about the equities (where it is disregarded). That approach is unprecedented. When the government fails to demonstrate its compelling interest in burdening a constitutional right, courts routinely find that, in the absence of a compelling justification for interference, the balance of harms and public interest also favor protecting the moving party's burdened rights. See, e.g., Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 576 (2d Cir. 2002) (affirming the grant of a preliminary injunction because the City "had not sufficiently shown the existence of a relevant law or policy . . . that would . . . justify its actions in dispersing the homeless from the Church's landings and steps" (emphasis added)); Jolly v. Coughlin, 76 F.3d 468, 482-83 (2d Cir. 1996) (applying a heightened standard but nevertheless upholding a RFRA-based preliminary injunction because the plaintiff had established a prima facie case and the government had not established that its policy was the least restrictive means of furthering a compelling interest); Eisenberg ex rel. Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 127 n.11, 133 (4th Cir. 1999) [*93]  (reversing the denial of a preliminary injunction because the school district had not presented evidence sufficient to rebut the strict-scrutiny presumption that race-based decisions are invalid). See also Stuart Circle Parish v. Bd. of Zoning Appeals, 946 F. Supp. 1225, 1235-36, 1240 (E.D. Va. 1996) (finding that because plaintiffs demonstrated a substantial likelihood of success on their RFRA claim, their interest in religious freedom tipped the balance of harms and the public interest in their favor); Luckette v. Lewis, 883 F. Supp. 471, 483 (D. Ariz. 1995) (balance of harms weighed sharply in favor of prisoner given that his religious exercise was burdened and defendants had not demonstrated a countervailing public interest); Howard v. United States, 864 F. Supp. 1019, 1029 (D. Colo. 1994) (in light of likelihood of success, public interest in protecting First Amendment rights outweighed any possible harm to the government); McCormick v. Hirsch, 460 F. Supp. 1337, 1350 (M.D. Pa. 1978), abrogated on other grounds, see Bakery, Confectionery and Tobacco Workers' Int'l Union, Local 6 v. NLRB, 799 F. Supp. 507, 511 (E.D. Pa. 1992) [*94]  ("When the protection of First Amendment liberties are [sic] involved, little else need be said of balancing the public interest, as protection of these rights is the most fundamental."). n9

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n9 The dissent argues that the right at issue in this case is statutory, rather than constitutional, making several of the cases cited above inapposite. Opinion of Murphy, J., at 45-46 n.17. But RFRA dictates that the government must meet the same exacting standard as when it seeks to justify a burden on a constitutional right.


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If there was any doubt before, the Supreme Court's recent opinion in Ashcroft v. ACLU, 159 L. Ed. 2d 690, 124 S. Ct. 2783 (2004), forecloses the dissent's approach. Like this case, Ashcroft involved a preliminary injunction in which the merits were governed by the compelling interest/least restrictive means test. The issue there was the constitutionality of the Children's Online Protection Act, ("COPA"), which requires businesses posting certain sexually explicit content on [*95]  the web to require viewers to submit information verifying their age before they could access the materials. See id. at 2789-90. The main question was whether that means of keeping the content away from children was the least restrictive means, as compared with other methods (prominently, making internet filtering programs more readily available to parents). As in our case, there was evidence on both sides, and substantial factual questions remained about the relative effectiveness of the two alternatives. See id. at 2794. On that record, the Court found that the plaintiffs were likely to succeed primarily because the burden of proof was allocated to the government. See id. at 2791, 2793 (noting that movants had no burden to demonstrate the effectiveness of alternative means of serving the government's interest; the government bore the burden of proving that other alternatives were less effective than COPA).

By the dissent's logic, the Court should have gone on to reverse the district court's preliminary injunction on the theory that with respect to the balance of harms and public interest prongs, it was not the government but the plaintiffs who bore the burden of proving [*96]  that the COPA regime was not the least restrictive means of serving the government's interests. In fact the Court did quite the opposite. In affirming the preliminary injunction, the Court had this to say about the equities supporting the injunction:

As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. . . . For us to assume, without proof, that filters are less effective than COPA would usurp the District Court's factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.

See id. at 2794. The Court thus held that even with regard to the balance of harms, the government must "shoulder its full constitutional burden of proof respecting the less restrictive alternative argument." n10 Id. Under controlling Supreme Court precedent, therefore, we cannot "excuse" the government from meeting its burden simply by shifting the analysis from the likelihood of success to the equities.

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n10 The dissent complains that this passage "does not relate in any fashion" to the balance of the harms or public interest factors. Opinion of Murphy, J., at 47. This is not correct. The Court referred to "important practical reasons to let the injunction stand pending a full trial on the merits." The first of these was that "the potential harms from reversing the injunction outweigh those of leaving it in place by mistake." Ashcroft, 124 S. Ct. at 2794. But the principal point is what the Court did not do - it did not, as Judge Murphy says we should - treat the plaintiffs as not having met their burden of proof on the balances of equities where the same evidence had been held sufficient to establish that they were likely to prevail on the merits under a compelling interest test.


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C

Even putting aside any special features of RFRA or strict scrutiny more generally, there is a more basic problem with the dissenters' approach. While Judge Murphy is correct to insist that UDV carry its burden with regard to each of the four factors of the preliminary injunction test, he underestimates the significance of the likelihood of success on the remaining factors, thereby misconceiving the relationship between the four preliminary injunction factors. A primary purpose of the balance-of-harms inquiry is to determine the relative cost of an error favoring one side as compared with an error favoring the other. See, e.g., Ashcroft, 2004 WL 1439998 at *9 (noting that "the potential harms from reversing the injunction outweigh those of leaving it in place by mistake"); Tri- State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 358 (10th Cir. 1986) ("In essence, it would be easier to correct a mistake in favor of Tri-State in issuing an injunction than it would be to correct a mistake in favor of Shoshone and Pacific by not issuing it."). It follows that the balance- of-harms inquiry depends in part [*98]  on the merits inquiry, since the only way of assessing whose harms are likely to be erroneously imposed is to judge them in light of the likelihood of success on the merits. Thus, no matter how great the interim harm to UDV if it is prevented from using hoasca until the final resolution of this case, that harm must be discounted to the extent that it is likely that UDV will not ultimately prove entitled to use hoasca; by the same token, no matter how great the interim harm to the government if it is wrongfully forced to allow the UDV to use and import hoasca, that harm must be discounted by the likelihood that UDV will ultimately prevail. Cf. Opinion of Seymour, J., at 8-9.

Although not always explicitly, courts commonly evaluate the balance of harms in light of the likelihood of success. See, e.g., Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 & n.2 (7th Cir. 1992); Star Fuel Marts, LLC v. Sam's East, Inc., 362 F.3d 639, 652 (10th Cir. 2004) (downplaying the harm to the defendant because the defendant had not rebutted the plaintiff's prima facie case on the merits, and therefore the preliminary injunction required [*99]  the defendant to do no more than it was legally obligated to do). It may be possible, as the dissent suggests, for the harm and public interest factors to favor the party likely to lose on the merits so strongly that the (likely) losing party should succeed at the preliminary injunction stage. Such an outcome is highly unlikely, however, when the merits determination hinges on the strength of the governmental interest. In such cases, it is to be expected that the merits and the balance of equities would overlap. If the government's interest is not strong enough to outweigh the plaintiff's interest in religious exercise for purposes of the merits, it is highly unlikely to do so for purposes of the balance of harms.

D

Besides insisting that UDV has not met its supposed burden of disproving the government's interest, Judge Murphy's dissent also suggests several substantive reasons for finding that the balance of harms favors the government. First, he relies on the government's general interest in enforcing the law. See Opinion of Murphy, J., at 40-41, quoting New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 439(Rehnquist, Circuit [*100]  Justice 1977). However, we must not forget that this case involves the intersection of two Acts of Congress of equal dignity: RFRA and the CSA. As a result, the government's interest in complying with the law cuts both ways: the government has no less interest in obeying RFRA than it has in enforcing the CSA. Whether the public interest in enforcing the law favors accommodation under RFRA or strict application of the CSA depends on whether there is a compelling interest that requires strict enforcement of the latter. It would be circular to rely on that interest to establish the government's compelling interest in the first place.

The government also stresses its interest in uniform enforcement of the law and avoiding the burdens of case-by-case management of religious exemptions, raising concerns that if UDV is allowed an exemption in this case, it will make enforcement of the CSA (and the Convention) unworkable by encouraging a host of spurious claims for religious drug use. I find the panel opinion's reasons for skepticism on this front convincing. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1186 (10th Cir. 2003). In any [*101]  event, it is most unlikely that those fears will materialize during the pendency of a preliminary injunction. Assuming the government is entitled to enforce the CSA, a final judgment in its favor will serve as adequate discouragement for future claims similar to UDV's. If the government is serious about the dangers, it can always seek expedited treatment of this case on the merits, and prove its case to the district court.

Finally, even when the government is able to demonstrate a compelling interest under RFRA, it remains necessary to establish that there is no other way of furthering that interest that would have less impact on the religious exercise. See Yoder, 406 U.S. at 215 (requiring the government's interest to be one "not otherwise served"); 42 U.S.C. § 2000bb-1(b)(2). Thus, although the parties spend the bulk of their efforts arguing about whether the government has a compelling interest in prohibiting UDV's use of hoasca, that is only part of the analysis. In United States v. Hardman, when this Court applied RFRA to a statutory scheme that allowed Native American tribe members to possess eagle parts but denied access [*102]  to other practitioners of Native American religion, the Court en banc held that the government could not prevail without presenting evidence about the effects of alternative, less restrictive approaches on the compelling government interests in question. 297 F.3d at 1132. "We must first determine where along [the continuum of policy alternatives] the government's present solution lies, and where other, less restrictive means would lie." Id. at 1135.

This case, like Hardman, raises the question of why an accommodation analogous to that extended to the Native American Church cannot be provided to other religious believers with similar needs. As the panel majority noted, the apparent workability of the accommodation for Native American Church peyote use strongly suggests that a similar exception would adequately protect the government's interests here. See O Centro, 342 F.3d at 1186. The preliminary injunction issued in this case allows the government some degree of control over UDV's importation, storage, and use of hoasca. At least to some extent, then, the preliminary injunction works a compromise, attempting to respond to the [*103]  government's legitimate concerns while still allowing UDV to continue its religious activity. It is incumbent on the government to show why no such compromise regime could adequately serve its interests.

E

All told, this is the unusual case in which the plaintiff not only prevails on each of the four preliminary injunction factors, but does so with sufficient clarity that a preliminary injunction is warranted even though it would disturb the status quo. The dissent does not challenge that the plaintiff would suffer serious and irreparable injury from continued prohibition of its religious sacrament. With the burden on the government to prove that its interest in enforcing the CSA against religious hoasca use is compelling but the evidence in support of that interest no better than "in equipoise," the plaintiff has also demonstrated a likelihood of success on the merits. The same state of the record demonstrates conclusively that the plaintiff prevails on the other two factors. With a proven interest of high order on one side, and mere uncertainty, or "equipoise," on the other, the balance of equities is plainly in the plaintiff's favor. And in light of Congress's determination [*104]  that the public interest is served by accommodating the free exercise of religion except in cases of a proven compelling governmental interest, the plaintiff prevails on the "public interest" prong as well.

In conclusion, courts should issue preliminary injunctions that disturb the status quo only when the traditional balance is strongly in the plaintiff's favor, but on this record, plaintiff UDV has satisfied that demanding test.

No. 02-2323; O Centro Esprita Beneficiente Uniao Do Vegetal v. Ashcroft

HARTZ, Circuit Judge, dissenting:

I dissent, with great respect for the opinions that hold otherwise.

I join Part I of Judge Murphy's dissent and Part I of Judge McConnell's concurrence. I agree that the status quo is an important consideration and that Judge Murphy has properly analyzed where the status quo lies in this case. I should add, however, that, as with all balancing tests, our form of words in expressing the test is of minimal utility. District courts will continue to consider the factors we list and reach the result they believe to be equitable; and we, observing proper deference, will generally affirm.

In applying the balancing test, I believe that [*105]  the principal reason for reversing the preliminary injunction is the unlikelihood that UDV will ultimately prevail on the merits. Applying pre-Smith Supreme Court precedent (as RFRA requires), it is likely that the ultimate determination will be that there is a compelling interest in uniform application of the Controlled Substances Act. See Employment Div. v. Smith, 494 U.S. 872, 905, 108 L. Ed. 2d 876 (1990) (O'Connor, J., concurring). Moreover, it is even more likely to be determined that there is a compelling interest in full compliance with the 1971 United Nations Convention on Psychotropic Substances, which would be violated by permitting the UDV's use of hoasca. See O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft, 314 F.3d 463 (10th Cir. 2002).

DISSENTBY: SEYMOUR

DISSENT:

MURPHY, Circuit Judge, joined in full by EBEL, KELLY, and O'BRIEN, Circuit Judges, and as to Part I by HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in part.

I agree with the per curiam opinion that a movant for a preliminary injunction must make a heightened showing when the requested [*106]  injunction will alter the status quo. As set out more fully below, such an approach is completely consistent with the historic purpose of the preliminary injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that O Centro Espirita Beneficiente Uniao do Vegetal ("UDV") has sufficiently shown its entitlement to a preliminary injunction prohibiting the United States from enforcing the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. As a direct result of the preliminary injunction embraced by the majority, the United States is placed in violation of the United Nations Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543 (hereinafter the "Convention"). I thus dissent from parts III.B and IV of the per curiam opinion.

I.

A. A Heightened Showing is Appropriate When the Requested Preliminary Injunction Would Alter the Status Quo

The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the [*107]  burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 138 L. Ed. 2d 162 (1997) (per curiam) (quotation omitted); accord SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) ("As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." (citation omitted)); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). The Supreme Court has further indicated that the "limited purpose" of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 68 L. Ed. 2d 175 (1981). Accordingly, courts should be hesitant to grant the extraordinary interim relief of a preliminary injunction in any particular case, but especially so when such an injunction would alter the status quo prior to [*108]  a trial on the merits.

This court's precedents are in harmony with the sentiments expressed by the Supreme Court in Mazurek and Camenisch. In particular, this court has identified the following three types of disfavored preliminary injunction and concluded that a movant must make a heightened showing to demonstrate entitlement to preliminary relief: "(1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits." SCFC ILC, 936 F.2d at 1098-99. Because each of these types of preliminary injunction is at least partially at odds with the historic purpose of the preliminary injunction--the preservation of the status quo pending a trial on the merits--this court has held that to obtain such an injunction the movant must demonstrate that "on balance, the four [preliminary injunction] factors weigh heavily and compellingly in his favor." Id. at 1099.

The en banc court specifically reaffirms the central holding in SCFC ILC [*109]  that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. In advocating the abandonment of this requirement, Judge Seymour suggests that requiring a heightened showing when a requested preliminary injunction would alter the status quo is inconsistent with the need to prevent irreparable harm and is inconsistent with the approaches taken by other circuits. Opinion of Seymour, J., at 4-6. Neither assertion offers a convincing reason for abandoning the well-reasoned approach set out in SCFC ILC.

It is simply wrong to assert that the application of heightened scrutiny to preliminary injunctions which alter the status quo is inconsistent with the purpose of preliminary injunctions. The underlying purpose of the preliminary injunction is to "preserve the relative positions of the parties until a trial on the merits can be held." Camenisch, 451 U.S. at 395; see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2947, at 123 (2d ed. 1995) [hereinafter "Wright & Miller"] (noting that the purpose of the preliminary injunction is to assure that the non-movant does not take unilateral action which [*110]  would prevent the court from providing effective relief to the movant should the movant prevail on the merits). Although the prevention of harm to the movant is certainly a purpose of the preliminary injunction, it is not the paramount purpose. See Wright & Miller § 2947, at 123 (noting that although the prevention of harm to the movant is an important factor to be considered in deciding whether to grant a preliminary injunction, the primary purpose for such an order is "the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act"). Because a preliminary injunction which alters the status quo is generally contrary to this traditional purpose, such an injunction deserves some form of heightened scrutiny. See id. § 2948, at 133-35 & n.11 (collecting cases for proposition that "the purpose of the preliminary injunction is the preservation of the status quo and that an injunction may not issue if it would disturb the status quo"). Such an approach is supported by strong policy rationales.

Any injury resulting from a preliminary injunction that merely preserves the status quo is not a judicially inflicted injury. Instead, such injury [*111]  occurs at the hands of a party or other extrajudicial influence. By contrast, an injury resulting from a preliminary injunction that disturbs the status quo by changing the relationship of the parties is a judicially inflicted injury. It is injury that would not have occurred but for the court's intervention and one inflicted before a resolution of the merits. Because the issuing court bears extra responsibility should such injury occur, it should correspondingly be particularly hesitant to grant an injunction altering the status quo unless the movant makes an appropriate showing that the exigencies of the case require extraordinary interim relief. It may be small consolation should the issuing court ultimately resolve the merits in favor of the non-moving party; at that point the non-moving party has often incurred significant costs as a result of abiding by the improvident preliminary injunction. n1 A plaintiff who was willing to live with the status quo before filing its complaint should meet a higher standard in order to have the court intervene with an injunction that alters the status quo. Judge Seymour's approach, which seeks to elevate the importance of irreparable harm [*112]  at the expense of the status quo, is inconsistent with the historic underpinnings of the preliminary injunction.

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n1 See generally Wright & Miller § 2947, at 123. According to Professor Wright,

The circumstances in which a preliminary injunction may be granted are not prescribed by the Federal Rules. As a result, the grant or denial of a preliminary injunction remains a matter for the trial court's discretion, which is exercised in conformity with historic federal equity practice. Although the fundamental fairness of preventing irremediable harm to a party is an important factor on the preliminary injunction application, the most compelling reason in favor of entering a Rule 65(a) order is the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act. On the other hand, judicial intervention before the merits have been finally determined frequently imposes a burden on defendant that ultimately turns out to have been unjustified. Consequently, the preliminary injunction is appropriate whenever the policy of preserving the court's power to decide the case effectively outweighs the risk of imposing an interim restraint before it has done so.

Id. (footnotes omitted).


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Nor is the failure of other courts to adequately distinguish between mandatory injunctions and injunctions that alter the status quo a sufficient reason to abandon SCFC ILC. See Opinion of Seymour, J., at 4 & n.1. In asserting that preliminary injunctions which alter the status quo should not be an independent disfavored category, Judge Seymour relies heavily on the fact that in cataloging the types of disfavored injunctions, no other court has chosen to specifically distinguish between preliminary injunctions which alter the status quo and preliminary injunctions which are mandatory. Id. None of the cases cited by Judge Seymour, however, contain any discussion of this question. Instead, those cases simply note, almost reflexively, that any preliminary injunction which alters the status quo is a mandatory injunction and, thus, subject to heightened scrutiny. Id. (collecting cases). The reflexive equation of preliminary injunctions which alter the status quo with mandatory injunctions by the courts cited by Judge Seymour is simply not a compelling justification to abandon the reasoned approach from SCFC ILC.

In any event, it is certainly true that courts have historically [*114]  applied a more stringent standard to mandatory preliminary injunctions for the very reason that those injunctions generally do alter the status quo. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). In fact, most courts decide whether a given preliminary injunction is "mandatory" or "prohibitory" by determining whether or not it alters the status quo. See, e.g., Tom Doherty Assocs., 60 F.3d at 34; Acierno v. New Castle County, 40 F.3d 645, 647 (3d Cir. 1994); Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994); Martinez v. Mathews, 544 F.2d 1233, 1242-43 (5th Cir. 1976). For these courts, then, the question whether an injunction is mandatory or prohibitory is merely a proxy for the more significant question whether an injunction alters the status quo. Thus, to the extent these two categories do overlap, it is indeed strange to keep the proxy while jettisoning the underlying consideration [*115]  giving rise to that proxy. See Opinion of Seymour, J., at 4, 9-10 (advocating the abandonment of heightened scrutiny for injunctions which alter the status quo, while maintaining heightened scrutiny for mandatory injunctions).

There is good reason, however, to distinguish between mandatory injunctions and injunctions which alter the status quo and to treat both types as disfavored. As set out above, "[a] preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only to preserve the status quo until a trial on the merits may be had." SCFC ILC, 936 F.2d at 1099. Although mandatory injunctions also generally alter the status quo, that is not always the case. It is not at all difficult to envision situations where a mandatory injunction would preserve the status quo and a prohibitory injunction would alter the status quo. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 241 U.S. App. D.C. 83, 746 F.2d 816, 830 n.21 (D.C. Cir. 1984) (noting that whether a mandatory or prohibitory injunction will maintain or alter the status quo depends on whether the status quo is [*116]  a "condition of action" or a "condition of rest"). Without regard to whether a mandatory preliminary injunction alters the status quo, however, it is still appropriate to disfavor such injunctions "because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction." SCFC ILC, 936 F.2d at 1099. Thus, it is simply incorrect to assert that there is perfect overlap between these two categories and that the concept of status quo should be folded into the question whether an injunction is mandatory or prohibitory. The fact that other courts have failed to recognize these subtle distinctions is simply no reason to abandon the three artfully drawn categories set out in SCFC ILC.

For these reasons, the court is correct in reaffirming the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. Nevertheless, the decision to jettison SCFC ILC's "heavily and compellingly" language as the articulated standard for granting [*117]  any of the three types of disfavored preliminary injunctions is appropriate. It is enough to note that courts in this Circuit should recognize that each of the three types of injunction identified above is disfavored and that a request for such an injunction should be even more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is certainly extraordinary. See Enter. Mgmt. Consultants, 883 F.2d at 888 (holding that even a traditional injunction, i.e., an injunction which preserves the status quo, is an "extraordinary" and "drastic" remedy). Furthermore, because a preliminary injunction that alters the status quo operates outside the historic parameters for such interim relief, movants should not be able to rely on this Circuit's modified- likelihood-of-success-on-the-merits standard. Instead, in addition to making a strong showing that the balance of the harms tips in its favor and that the preliminary injunction is not adverse to the public interest, a movant seeking a preliminary injunction that alters the status quo should always have to demonstrate a substantial likelihood of success on the merits. n2

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n2 Judge Seymour is simply incorrect in implying that the application of heightened scrutiny to preliminary injunctions that alter the status quo is inconsistent with the need to prevent irreparable harm. Opinion of Seymour, J., at 6-7. Instead, such an approach recognizes that preliminary injunctions which alter the status quo, an unconventional and historically disfavored type of interim relief, are far more likely to impose untoward costs on the non-moving party. For that reason, and because of the attendant costs imposed on the judiciary by such preliminary injunctions, it is appropriate to require that movants make a heightened showing as a predicate to obtaining a preliminary injunction which alters the status quo. Such a system is sufficiently flexible to allow courts to grant a preliminary injunction which alters the status quo when the harm to the movant is clear, certain, and irreparable; the balance of harms undoubtedly tips in favor of the movant; and the movant demonstrates a substantial likelihood of success on the merits.


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B. The Status Quo in This Case is the Enforcement of the CSA and Compliance with the Convention

The status quo in fact in this case is the enforcement of the CSA and compliance with the Convention. The record is clear that both UDV itself and the United States recognized that the importation and consumption of hoasca violated the CSA. UDV made a concerted effort to keep secret its importation and use of hoasca. On the relevant import forms, UDV officials in the United States generally referred to hoasca as an "herbal tea"; they never called it hoasca or ayahuasca or disclosed that it contained DMT. UDV president Jeffrey Bronfman informed customs brokers that the substance being imported was an "herbal extract" to be used by UDV members as a "health supplement." Furthermore, in an e-mail drafted by Bronfman, he emphasized the need for confidentiality regarding UDV's "sessions" involving hoasca: "Some people do not yet realize what confidentiality is and how careful we need to be. People should not be talking publicly anywhere about our sessions, where we have them and who attends them." When UDV attempted to grow psychotria viridis and banisteriopsis [*119]  caapi n3 in the United States, it imported the seeds and plants "clandestinely," in the words used by UDV, and required its members to sign confidentiality agreements to keep their attempts secret. All of these actions by UDV demonstrate a recognition that its importation and consumption of hoasca violated the CSA. Likewise, when the United States realized that UDV was importing a preparation which contained DMT, it seized that shipment and additional quantities of the preparation found in a search of Bronfman's residence. Accordingly, although UDV eventually sought a preliminary injunction after the seizure of the hoasca, at all times leading up to that event the record reveals that the status quo was the enforcement of the CSA. Where one party, here UDV, intentionally precludes a contest by concealing material information, the status quo must be determined as of the time all parties knew or should have known all material information.

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n3 These are the two plants utilized to brew hoasca.


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Although [*120]  recognizing that UDV "acted in a somewhat clandestine manner in the course of importing the hoasca and using it in its religious ceremonies," Judge Seymour nevertheless asserts that UDV's importation and use of hoasca is still the status quo because UDV's actions were "premised on its firmly held belief that such religious activity was in fact protected from government interference by its right to the free exercise of its religion." Opinion of Seymour, J., at 19 n.3. It is odd, indeed, to assume that UDV thought its actions were entirely lawful and protected by the Religious Freedom Restoration Act ("RFRA") or the First Amendment, in light of the fact that all of its actions were taken in secret. In any event, UDV's reason for doing what it was doing is irrelevant. It simply cannot be the case that a party can establish the status quo in a given case through secretive or clandestine activity. There is enough natural incentive to manipulation in events preceding litigation, and in litigation itself, without providing judicial endorsement of surreptitious conduct by wrapping it in a cloak of "status quo." The "last peaceable uncontested status existing between the parties before [*121]  the dispute developed," 11A Wright & Miller § 2948, at 136, is most surely the open and notorious actions of the parties before the dispute. Here, it is uncontested that the open and notorious actions of UDV were a facade of compliance with the CSA. Thus, the status quo in this case is the government's enforcement of the CSA.

What is most strange about the approach advocated by Judge Seymour is its apparent reliance on the legal rights of the parties in arriving at the status quo in this case. Although disclaiming such an approach, Opinion of Seymour, J., at 18, Judge Seymour specifically references the parties' legal rights in determining the status quo in this case. Id. ("We are faced with a conflict between two federal statutes, RFRA and the CSA, plus an international treaty, which collectively generate important competing status quos."). If the status quo is both parties exercising their legal rights, but the mutual and contemporaneous exercise of those rights is factually impossible, then the status quo must instead be the exercise of legal rights by only one party. Judge Seymour has not cited a single case to support the assertion that status quo is determined by reference [*122]  to a party's legal rights. Furthermore, such an approach is clearly inconsistent with this Circuit's historic understanding of what constitutes the status quo. SCFC ILC, 936 F.2d at 1100 ("The status quo is not defined by the [parties'] existing legal rights; it is defined by the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights."). Finally, such an approach is completely unhinged from the reality of the parties' extant relationship and from the historic purposes of the preliminary injunction. For instance, under Judge Seymour's view of what constitutes the status quo, it would not be determinative had the government at first knowingly acquiesced in UDV's consumption of hoasca, believing that such consumption was protected by RFRA, before eventually changing tack and deciding to enforce the CSA. Instead, under Judge Seymour's approach, a relevant consideration for status quo purposes is whether the government was at all times legally entitled to enforce the CSA. n4 This is clearly a question [*123]  of whether UDV is likely to prevail on the merits. Thus, if a party is likely to prevail on the merits, Judge Seymour would label that merits analysis the status quo and then use it a second time to reduce the movant's burden on the final three preliminary injunction factors. Such an approach lacks logical moorings.

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n4 Likewise, envision two parties to a long-term contract. For a number of years both parties have operated with an identical understanding of a key provision of the contract. Party A suddenly changes course and adopts a different view of the contract. Facing irreparable injury, party B brings a declaratory judgment action and seeks a preliminary injunction to preserve the status quo pending resolution of the suit. Under Judge Seymour's approach, the parties' course of conduct would be irrelevant to the question of status quo. Instead, the status quo would be determined by the merits of the parties' legal assertions. That is, if the district court determined on a preliminary and incomplete record that party A was likely to prevail on the merits, the status quo would be party A's revised interpretation of the contract. Such an approach is surely at odds with any basic understanding of what constitutes the status quo.


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C. Conclusion

In sum, a heightened standard is consistent with the historical underpinnings of the preliminary injunction and is supported by persuasive policy rationales. Furthermore, this court's delineation in SCFC ILC of three types of disfavored preliminary injunction is well-reasoned and consistent with the historic purpose of the preliminary injunction; SCFC ILC should not be completely abandoned simply because other courts have chosen a different course. The status quo in this case is the government's enforcement of the CSA and compliance with the Convention. Accordingly, when analyzing whether UDV is entitled to its requested preliminary injunction, this court will recognize that the requested injunction is disfavored and more closely scrutinize the request to assure that the exigencies of the case support the granting of a particularly extraordinary remedy. n5

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n5 As noted in the panel dissent, because the district court did not recognize that the requested preliminary injunction would change the status quo, it did not subject UDV's request to any special scrutiny. O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1190 (10th Cir. 2003) (Murphy, J., dissenting). The failure of the district court to apply the correct standard in evaluating UDV's request for a preliminary injunction amounts to an abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.3d 1096, 1100 (10th Cir. 1991). Nevertheless, because the record on appeal is sufficiently well developed, it is appropriate for this court to determine in the first instance whether UDV has met the requisite burden. O Centro Espirita, 342 F.3d at 1190 (Murphy, J., dissenting) (citing SCFC ILC, 936 F.2d at 1100).


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II.

Based heavily on the conclusion that UDV has demonstrated a substantial likelihood of success on the merits, a majority of the en banc court resolves that the district court did not err in granting UDV a preliminary injunction. In contrast to the conclusions of the majority, however, UDV has not demonstrated a substantial likelihood of success on the merits. First, RFRA was intended to restore the compelling interest test that existed before Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990). 42 U.S.C. § 2000bb(b)(1). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances and have continued to do so with RFRA. Second, one only need look to the congressional findings set out in the CSA to see that the United States carried its burden of demonstrating that the prohibition against importing or consuming hoasca furthers its compelling interests in protecting the health of UDV members and preventing diversion of hoasca to non-religious uses. Finally, compliance with the Convention, which results in international cooperation in curtailing illicit drug [*126]  trafficking, is certainly a compelling interest. The record further indicates that absent strict compliance with the Convention, the United States' efforts in this regard would be hampered.

Quite aside from the question of whether UDV has demonstrated it is substantially likely to prevail on the merits, UDV has not demonstrated its entitlement to a preliminary injunction. In connection with the risk to the health of UDV members and the risk to the public from diversion of hoasca, the district court found the evidence respectively "in equipoise" and "virtually balanced." The district court did not proceed to even address the harm to the government and the public interest resulting from violations of the Convention necessitated by its injunction. With the evidence in this state, UDV has not carried its burden of demonstrating that the third and fourth preliminary injunction factors--that the threatened injury to it outweighs the injury to the United States under the preliminary injunction and that the injunction is not adverse to the public interest--weigh in its favor thereby justifying even a preliminary injunction that does not alter the status quo. Superimposing the more appropriate [*127]  heightened scrutiny for a disfavored injunction altering the status quo upon the evidence in this case renders the preliminary injunction even more decidedly erroneous.

A. Substantial Likelihood of Success on the Merits

1. Controlled Substances Act

RFRA was never intended to result in the kind of case-by-case evaluation of the controlled substances laws, and the scheduling decisions made pursuant to those laws, envisioned by the majority. In light of the specific findings set out in the CSA with regard to the drug at issue here, it is particularly improper for the court to assume such a function in this case. This is true even though limited religious use of another drug, peyote, has been allowed pursuant to statute, 42 U.S.C. § 1996a, and before that, pursuant to regulation, 21 C.F.R. § 1307.31. Apart from the fact that courts should not direct the nation's drug policy, courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement of those laws. In contrast to the majority's conclusion, RFRA does not compel such an approach.

To the extent that RFRA requires the [*128]  government to prove a compelling governmental interest and least restrictive means concerning the ban on DMT, see 42 U.S.C. § 2000bb-1(b), the government need turn only to express congressional findings concerning Schedule I drugs. Congress specifically found that these drugs have a high potential for abuse, have no currently accepted medical use, and are not safe for use under any circumstances. 21 U.S.C. § 801(2) ("The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."); id. § 801a(1) ("The Congress has long recognized the danger involved in the manufacture, distribution, and use of certain psychotropic substances . . ., and has provided strong and effective legislation to control illicit trafficking and to regulate legitimate uses of psychotropic substances in this country."). As to the specific drug at issue here, DMT, Congress has found that it has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1)  [*129]  (setting out findings required for placement of a drug on Schedule I); id. § 812(c), sched. I(c)(6) (including DMT, dimethyltryptamine, within Schedule I). These congressional findings speak to a need for uniformity in administration given the serious problem of drug abuse in the United States. See Smith, 494 U.S. at 905 (O'Connor, J., concurring); United States v. Israel, 317 F.3d 768, 771 (7th Cir. 2003).

RFRA ought not result in a case-by-case redetermination of whether these findings are correct. Judge McConnell takes the opposite position--that congressional findings and scheduling (indeed Congress scheduled DMT) are not enough--stating "such generalized statements are of very limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance may vary considerably from context to context." Opinion of McConnell, J., at 25. Judge McConnell's opinion suffers from two serious defects.

First, the opinion is simply wrong in asserting that the findings in the CSA are too generalized to have any utility in determining whether the use of DMT in a religious setting [*130]  is dangerous to the health of UDV practitioners. On this point, Congress could not have been more clear. DMT has a high potential for abuse and is not safe to consume under any circumstances, even including under the supervision of medical personnel. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6).

Second, under the approach advocated by Judge McConnell, whether this court is talking about drinking hoasca tea (ingesting DMT), smoking marijuana, or shooting heroin (Judge McConnell's example), the government will be required to investigate religious use and determine whether the health risks or possibility of diversion would outweigh free exercise concerns. Such a reading of RFRA is difficult to reconcile with RFRA's purpose of merely reviving the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(b)(1). Congress viewed that test as applied in prior federal rulings as "a workable test for striking sensible balances between religious liberty and competing prior governmental interests." Id. § 2000bb(a)(5). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances. See  [*131]  United States v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989); Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989); Olsen v. Iowa, 808 F.2d 652, 653 (8th Cir. 1986); United States v. Rush, 738 F.2d 497, 512-13 (1st Cir. 1984); United States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982). They have continued to do so with RFRA. See Israel, 317 F.3d at 772; United States v. Brown, No. 95-1616, 1995 WL 732803, at *2 (8th Cir. Dec. 12, 1995) (per curiam); United States v. Jefferson, 175 F. Supp. 2d 1123, 1131 (N.D. Ind. 2001). Though these cases involve marijuana, the same result should obtain in this case. n6

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n6 Judge McConnell asserts that these precedents provide no insight into the proper result in this case because the use of DMT (presumably only that DMT consumed in the form of hoasca) is not in widespread use and its sacramental use is "tightly circumscribed." Opinion of McConnell, J., at 21-22. Judge McConnell's view of religious freedom under RFRA is novel and problematic. Under his view, small religious groups are free to use "sacramental drugs," as long as those "sacramental drugs" are esoteric and are not used too frequently. Once the religious group becomes too successful at attracting adherents, its chosen "sacramental drug" becomes popular with the public at large, or it decides that its sacrament must be consumed too frequently, the government's interest becomes paramount. Unfortunately, he cites nothing from the legislative history of RFRA or from pre-Smith law to support the notion that the government has a lesser interest in regulating the sacramental drug use of small religious groups than it does in regulating the sacramental drug use of larger religious groups.


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Judge McConnell's view of how RFRA operates seems to overlook events leading up to the passage of RFRA. It is certainly true, as Judge McConnell notes, that RFRA was passed in response to the Supreme Court's decision in Smith and that Smith did happen to involve the sacramental use of peyote. Opinion of McConnell, J., at 21 ("The impetus for enactment of RFRA was the Supreme Court's decision in a case involving the sacramental use of a controlled substance."). Judge McConnell is wrong to imply, however, that Congress intended to alter the ultimate outcome of that case (states may, consistent with the constitution, prohibit all uses, both religious and non-religious, of peyote), as opposed to altering the analytical model set out in that case (no right in the Free Exercise Clause to avoid neutral laws of general application). Opinion of McConnell, J., at 21-23. A review of the findings accompanying RFRA makes clear that Congress was concerned with the latter, not the former. n7 The procedural history preceding the enactment of RFRA does not support Judge McConnell's assertion that this court is free to ignore the congressional findings in the CSA in resolving UDV's RFRA claim.  [*133] 

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n7 The Congressional findings accompanying RFRA provide as follows:

The Congress finds that--

(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(3) governments should not substantially burden religious exercise without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

42 U.S.C. § 2000bb(a).


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Equally [*134]  unconvincing is Judge McConnell's attempt to minimize the government's interest in the uniform enforcement of the CSA. Unlike compulsory education for an additional two years, the interest in enforcement of the nation's drug laws as prescribed by Congress is one of the highest order. Wisconsin v. Yoder, 406 U.S. 205, 215, 32 L. Ed. 2d 15 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). It directly affects the health and safety of American citizens. Unlike the protection of bald and golden eagle populations, the regulation of controlled substances can mean the difference between human life and death, and a court should not be second-guessing legislative and administrative determinations concerning drug scheduling based upon the record we have in this case. See United States v. Szycher, 585 F.2d 443, 444-45 (10th Cir. 1978); see also Touby v. United States, 500 U.S. 160, 162-163, 114 L. Ed. 2d 219 (1991) (discussing time- consuming procedural requirements involved [*135]  in drug scheduling). For these reasons, Judge McConnell's reliance on Yoder and Hardman is simply misplaced. Opinion of McConnell, J., at 23-24, 44-45.

Judge McConnell is likewise wrong to assert that the Attorney General has the raw power to grant religious exemptions from the Controlled Substances Act under the guise that it "is consistent with public health and safety." 21 U.S.C. § 822(d) (waiving registration requirements for certain manufacturers, distributors and dispensers if consistent with public health and safety); Olsen, 878 F.2d at 1466 app. (DEA Final Order) ("There is no mechanism for an exemption to scheduling for religious purposes."). The government's regulatory exemption for peyote, 21 C.F.R. § 1307.31, later enacted by statute, 42 U.S.C. § 1996a, was at all times a product of congressional will. See Rush, 738 F.2d at 513 (noting the "sui generis legal status of the American Indians"). The panel opinion recognized this when it rejected an equal protection argument that because the Native American Church's use of peyote is protected, so too should [*136]  be the use of hoasca. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1186 n.4 (10th Cir. 2003). The panel relied upon Peyote Way Church of God v. Thornburgh, 922 F.2d 1210, 1216 (5th Cir. 1991), which held that an exemption for the Native American Church members to use peyote was rationally related to the government's trust responsibility to preserve Native American culture. To read the exemption for the Native American Church as an indication that Congress and the Executive have not precluded "a particularized assessment of the risks involved in specific sacramental use" of controlled substances, Opinion of McConnell, J., at 25-27, proves too much--the concurring opinion can point to no other controlled substance receiving like treatment.

The CSA envisions careful scheduling of substances. See 21 U.S.C. § 811(c) (listing eight factors which Attorney General must consider before adding or removing a substance from schedules); id. § 812(b) (findings necessary for adding a substance to a schedule); id. § 811(a) (requirement of notice and a hearing before Attorney General may add [*137]  or remove a substance from schedule). It also envisions medical and scientific uses of controlled substances in the public interest and consistent with public health and safety; "neither manufacturing, distribution or dispensing contemplates the possession of controlled substances for other than legitimate medical or research purposes." Olsen, 878 F.2d at 1466 app. (DEA Final Order); see also 21 U.S.C. § 823(a)-(b). Finally, the CSA allocates the burden of production in favor of the government: in any proceeding brought by the government under Title 21, the burden of going forward with evidence of any exemption or exception falls on the person claiming its benefit. 21 U.S.C. § 885(a)(1) (government is not required to negative any exemption or exception).

The careful approach of the CSA should be contrasted with that of this court. Although this court recognizes that "the interests of the government as well as the more general public are harmed if the government is enjoined from enforcing the CSA against the general importation and sale of street drugs, or from complying with the treaty," it then characterizes this [*138]  case as one "about importing and using small quantities of a controlled substance in the structured atmosphere of a bona fide religious ceremony." Opinion of Seymour, J., at 22-23. Can the free exercise of religion under RFRA really turn on whether the adherent has a religious affinity for street drugs or more esoteric ones? n8

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n8 As noted above, Judge McConnell suggests that it can. According to his opinion, the strength of the government's interest in avoiding diversion of a controlled substance and enforcing the CSA will vary under RFRA depending on how esoteric the drug is, how often the drug is taken as a sacrament, the size of the religious group, and whether the drug is consumed in a traditional or non- traditional fashion. Opinion of McConnell, J., at 21-22, 27-28. With regard to this particular case, Judge McConnell presumes that in proscribing DMT Congress was only concerned with it being taken intravenously or being inhaled, not with oral ingestion. Id. at 27. No evidence supports this. In United States v. Green, 548 F.2d 1261 (6th Cir. 1977), a DEA chemist qualified as an expert witness testified to the hallucinogenic effects of DMT and its similarity in this respect to LSD, its dangerousness, and potential for abuse. Id. at 1269; see also People v. Saunders, 187 Ill. App. 3d 734, 543 N.E.2d 1078, 1080, 135 Ill. Dec. 510 (Ill. App. Ct. 1989) (psychiatrist testimony that DMT is an hallucinogen and similar to LSD). Though the court reversed the conspiracy to manufacture convictions in Green because it found that such testimony had minimal probative value and was prejudicial concerning the conspiracy charge, the court noted that "such facts may be highly relevant is assessing the need for controlling the drug." Green, 548 F.2d at 1270. Other DMT prosecutions may be found in United States v. Ling, 581 F.2d 1118 (4th Cir. 1978); United States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973); United States v. Moore, 452 F.2d 569 (6th Cir. 1971). It is also noteworthy that New Mexico proscribes possession and possession with intent to distribute DMT (dimethyltryptamine). See N.M. Stat. Ann. §§ 30-31-6(C)(6), 30-31-20(B), 30- 31-23(D).


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In light of the congressional purpose behind RFRA of reinstating the pre- Smith compelling interest test, 42 U.S.C. § 2000bb(b)(1), the routine rejection of religious exemptions from drug laws in the pre-Smith era, and the congressional findings undergirding the placement of DMT among the most dangerous and addictive of drugs (i.e., Schedule I substances), UDV has failed to demonstrate that it is likely to succeed on the merits of its claim that RFRA entitles it to freely import and dispense hoasca.

2. United Nations Convention on Psychotropic Substances

The United States argues convincingly that a preliminary injunction requiring it to violate the Convention could seriously impede its ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. See 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a phenomenon common to many countries . . . and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances."). n9 The [*140]  district court erroneously concluded that the Convention did not cover hoasca. Judge McConnell does not appear to directly address the merits of the district court's conclusion, instead concluding that the government has failed to carry its burden under RFRA of demonstrating narrow tailoring. Opinion of McConnell, J., at 29-33. Judge Seymour, on the other hand, takes an entirely different tack. In her separate opinion, she asserts that because the Convention includes a provision allowing "signatory nations to seek an exemption from the treaty for indigenous plants containing prohibited substances 'traditionally used by certain small, clearly determined groups in magical or religious rites,'" the government's "argument that it will be significantly harmed by a preliminary injunction temporarily restraining it from enforcing the treaty against the UDV does not ring entirely true." Opinion of Seymour, J., at 25. The district court, Judge McConnell, and Judge Seymour are all incorrect.

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n9 As was true of the panel majority, Judge Seymour asserts that the Convention "must be read in light of RFRA and the religious use of the controlled substance here." Opinion of Seymour, J., at 24 & n.5 (citing O Centro Espirita, 342 F.3d at 1183-84). As noted in the panel dissent, such an assertion could be read for the following two disturbing propositions: (1) the government's interest in complying with its obligations under the Convention is not compelling because these obligations conflict with the government's obligations under RFRA; and (2) because RFRA was enacted after the Convention was ratified, the Convention is nullified to the extent it conflicts with RFRA. O Centro Espirita, 342 F.3d at 1191 n.4 (Murphy, J., dissenting). The dissent further explained why both propositions are incorrect as a matter of law. Id. Unfortunately, Judge Seymour has carried the panel's error forward, again intimating that the terms of the Convention have somehow been amended by RFRA. For those reasons set out in the panel dissent, Judge Seymour is wrong in asserting that RFRA has displaced or amended the Convention. Id.


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For those reasons set out in the panel dissent, hoasca is a preparation containing a Schedule I substance covered by the Convention. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting). Article 7 of the Convention obligates signatory nations to prohibit all uses of Schedule I substances and to prohibit the import and export of those substances. Convention, supra, at 1, art. 7, 32 U.S.T. 543. The congressional findings in 21 U.S.C. § 801a(1) make clear that international cooperation and compliance with the Convention are essential in providing effective control over the cross-border flow of such substances. In addition, the record contains the declaration of Robert E. Dalton, a State Department lawyer for the Treaty Affairs Office. Dalton's declaration asserts that the need to avoid a violation of the Convention is compelling and that a violation of the Convention would undermine the United States' role in curtailing illicit drug trafficking. It appears that the Dalton declaration is unopposed. In light of the plain meaning of the Convention, the congressional findings on the importance of cooperation, and the [*142]  Dalton declaration, UDV has not demonstrated a substantial likelihood that it will prevail on the merits of its RFRA claim.

In his separate opinion, Judge McConnell asserts that (1) the government deprived this court of "evidence" necessary to interpret the Convention and (2) the government failed to demonstrate that strictly prohibiting the import and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention. Opinion of McConnell, J., at 29, 30-33. Judge McConnell's assertions are flawed in several respects.

First and foremost, the interpretation of the Convention is a question of law. See, e.g., Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 370 (2d Cir. 2004) (holding that proper interpretation of an international treaty is a question of law subject to de novo review); United States v. Garrido-Santana, 360 F.3d 565, 576- 77 (6th Cir. 2004) (same); United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004) (same); Smythe v. United States Parole Comm'n, 312 F.3d 383, 385 (8th Cir. 2002) (same). Here, the district court unequivocally concluded that the [*143]  Convention did not apply to hoasca. For those reasons set out in the panel dissent, the district court's legal conclusion is erroneous. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting). That the district court did not hold a hearing on this question, does not foreclose this court from recognizing the district court's legal error. When interpreting a treaty this court must "first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 663, 119 L. Ed. 2d 441 (1992). As set out in the panel dissent, and as elaborated supra, the plain language of the Convention makes clear that all signatories must prohibit the international trafficking of hoasca.

Based on its erroneous legal conclusion that the Convention did not apply to hoasca, the district court precluded the government from presenting evidence regarding the Convention at the evidentiary hearing. In a letter to the parties, the district court indicated as follows: "I have reviewed the parties' briefs on [UDV's] Motion for Preliminary Injunction. I believe that it will be necessary to hold an evidentiary hearing on the following [*144]  factual issues: 1) the health risks associated with the ceremonial use of hoasca; 2) the potential for diversion of hoasca to non-ceremonial use . . . ." Of course, as noted above, whether hoasca is covered by the Convention is a question of law for the court to decide, not a question of fact like those questions identified by the district court in its letter. Thus, it is strange to assert, as does Judge McConnell, that it would be premature to reach this issue because the district court did not hold an evidentiary hearing on the matter. Opinion of McConnell, J., at 29.

Nor is it altogether accurate to assert that it was the defendants who opposed the introduction of evidence on this question at the hearing. Id. Judge McConnell asserts that UDV "attempted to present evidence regarding the interpretation of the Convention by the International Narcotics Control Board [("INCB")], the international enforcing agency, including a letter by the Secretary of the Board stating that hoasca is not controlled under the Convention." Id. (emphasis added). Judge McConnell makes it appear that UDV sought to produce multiple items of evidence, only one component of which was a letter [*145]  from the Secretary of the INCB. In fact, UDV merely sought to question a witness about the contents of Plaintiff's Exhibit 54, a letter from the Secretary of the INCB. That letter had already been admitted into evidence and used by both UDV and the government in questioning witnesses regarding the efficacy of the control measures for Schedule I and II drugs under the Convention. Furthermore, as noted by the government below, there are serious questions as to the relevance of the Secretary's opinion regarding whether hoasca is covered by the Convention.

Judge McConnell further asserts that based on a narrow objection by the United States, the district court excluded the evidence, depriving this court of "interpretive history" necessary to a resolution of this appeal. n10 It is far from clear, however, that Plaintiff's Exhibit 54 is as important as Judge McConnell would assume, since neither party saw fit to include it in the record on appeal. Nor is it accurate to assert that the sole basis of the government's objection to the line of questioning was that the district court had not asked the parties to present evidence on the issue. Opinion of McConnell, J., at 29. Instead, the [*146]  government objected on multiple grounds: (1) the questions were beyond the scope of redirect examination; (2) the letter was legally irrelevant; (3) the district court had previously informed the parties that no evidence would be taken on the Convention; and, most importantly, (4) whether hoasca is covered by the Convention was a legal question for the court to decide. n11 Taken in context, then, it is not appropriate to hold the government responsible, as does Judge McConnell, for the district court's failure to hold a hearing on whether compliance with the Convention is a compelling governmental interest. Id.

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n10 According to Judge McConnell,

The government objected on the ground that "We are now introducing testimony about whether or not ayahuasca is controlled under the International Convention. That is not one of the issues in this hearing." After discussion, the district court forbade the questioning on the subject, and plaintiffs were unable to introduce evidence on the interpretation of the Convention by the Board. For this Court to attempt to interpret a complex treaty on the basis of its "plain language," without the benefit of its interpretive history, would be premature."

Opinion of McConnell, J., at 29 (record citation omitted). [*147] 



n11 During the discussion on whether the questioning should be allowed, counsel for the government stated as follows:

Objection, Your Honor. We are now introducing testimony about whether or not ayahuasca is controlled under the International Convention. That is not one of the issue in this hearing.

. . . .

Your Honor, the person who introduced that exhibit was plaintiffs' counsel, who introduced it for the purpose of talking about the effectiveness of controls. I also was talking about the effectiveness of Schedule I and II controls. I did not talk about the applicability of the treaty to ayahuasca. That is not one of the issues here. That is a legal issue, and that is up to Your Honor to decide. . . .

. . . .

Your Honor, we did not just now talk about which substances were controlled in the Convention. When I went through this report, it was to rebut statements [plaintiffs' counsel] made from the report yesterday about the effectiveness of the controls. That is the only reason.

The reason why we should not be talking about this today is because it is not an opinion of the INCB. The secretary of the board is not a voting member. The government does not agree or accept that the INCB doesn't control ayahuasca under the Convention. The INCB does not have the authority to determine what is controlled under the Convention. This is an entirely separate issue. It's a legal issue for another day. And this does not relate to diversion or anything I talked about just now.


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Nor is it appropriate to fault the government for failing to demonstrate that strictly prohibiting the importation and consumption of DMT, in the form of hoasca, is the least restrictive way to further the government's interest in complying with the Convention. Opinion of McConnell, J., at 30. The problem, of course, is that the district court short-circuited the government's ability to present evidence on this particular question when it concluded that the Convention did not apply to hoasca. Under these circumstances, it seems strange to punish the government for this purported evidentiary deficiency. As we have it, the Dalton declaration is the only evidence in the record on the question and is uncontradicted. With the record in this state, UDV has failed to demonstrate a substantial likelihood of success on the merits. n12

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n12 Even if Judge McConnell were correct that the record is too truncated to reach a decision on whether the government has advanced a compelling interest in complying with the Convention and that prohibition on the import and consumption of hoasca is the most narrowly tailored means of advancing that compelling interest, however, the more appropriate course of action would be to remand to the district court for further development of the record.


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In response, Judge McConnell envisions an elaborate process whereby, to demonstrate narrow tailoring, the government is obligated to request that DMT be removed from the schedule of drugs covered by the Convention. Opinion of McConnell, J., at 30-31. That is, until the government seeks to have DMT removed from coverage by the Convention, it cannot demonstrate that "strict" prohibitions against the import of DMT are the least restrictive means of advancing its interest in complying with the Convention. It is worth noting at the outset that this argument is not advanced on appeal by UDV. In any event, Congress has specifically found that DMT is a highly dangerous and addictive substance. It is difficult to see how asking that DMT be removed from the schedule of drugs covered by the Convention advances the government's interests in any way. To the extent that Judge McConnell is implying that the government could seek an exemption allowing importation into and consumption of DMT in the United States, whether or not that DMT came in the form of hoasca, while the remaining signatories remain bound by the terms of the Convention to prevent international trafficking in DMT, his assertion [*150]  finds absolutely no support in the language of Article 2. There is simply nothing in that particular Article allowing signatory nations to pick and choose which of the Scheduled drugs they will criminalize. It is certainly true that signatory nations can object to the scheduling of new psychotropic drugs and can ask that drugs already scheduled be reclassified. Opinion of McConnell, J., 30-31. Those provisions do not, however, allow for a single nation opt-out; instead, they establish the schedule of drugs that all signatory nations will be obligated to criminalize. It is incongruous to obligate the government to seek to remove DMT from the coverage of the Convention in order to demonstrate that its efforts to restrict the importation and consumption of DMT are the least restrictive means of complying with the Convention.

Judge Seymour does not endorse the district court's conclusion that the Convention does not apply to hoasca. Instead, she asserts that the availability of the exemption in Article 32 of the Convention demonstrates that no significant harm will flow to the government from the injunction. Opinion of Seymour, J., at 24-25; see also Opinion of McConnell, J.,  [*151]  at 31-32 (asserting that the failure of the government to seek a reservation under Article 32(4) on behalf of UDV demonstrates the government failed to prove that the strict prohibition against the importation and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention). What Judges Seymour and McConnell fail to acknowledge, however, is that the exemption set out in Article 32(4) allows signatory nations to make a reservation as to all of the provisions of Article 7, except for the provisions of Article 7 prohibiting the international trafficking of psychotropic substances. Article 32(4) specifically provides as follows:

A State on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites, may, at the time of signature, ratification or accession, make reservations concerning these plants, in respect of the provisions of article 7, except for the provisions relating to international trade.

Convention, supra, at 1, art. 32(4), 32 U.S.T. 543 [*152]  (emphasis added). In light of this very specific language, it is not possible to treat the exemption set out in Article 32 as diminishing the significant injury to the government flowing from an injunction mandating that the government allow the importation of hoasca.

B. Balance of Harms and Public Interest

For those reasons set out above, UDV has not demonstrated a substantial likelihood of success on the merits of its RFRA claim. This is especially true in light of the heightened burden on UDV to demonstrate its entitlement to a preliminary injunction that upends the status quo. Independent of the question of likelihood of success on the merits, however, UDV has not demonstrated that its harm outweighs the harm flowing to the government as a result of the preliminary injunction or that the preliminary injunction is not adverse to the public interest.

RFRA provides that once a person proves that a law substantially burdens the exercise of religion, the government has the burden of going forward and of persuasion in proving that the law furthers a compelling governmental interest and that the law as applied is the least restrictive means of furthering that compelling [*153]  governmental interest. 42 U.S.C. §§ 2000bb-1(a), 2000bb-1(b)(1)-(2), 2000bb-2(3). Though this is a demanding test, see City of Boerne v. Flores, 521 U.S. 507, 534, 138 L. Ed. 2d 624 (1997), it seems particularly appropriate to insist that a movant meet all elements of the preliminary injunction test because RFRA goes beyond the protections offered by the First Amendment. See Kikumura v. Hurley, 242 F.3d 950, 955, 962 (10th Cir. 2001) (requiring consideration of all preliminary injunction elements with RFRA claim). In other words, RFRA is not the First Amendment and UDV has no valid claim that its First Amendment rights are being violated given that the CSA is a neutral law of general applicability. See Smith, 494 U.S. at 885; United States v. Meyers, 95 F.3d 1475, 1481 (10th Cir. 1996). Given evenly balanced evidence concerning the health risks of DMT usage and its potential diversion, UDV cannot satisfy its burden of showing that its injury outweighs any injury to the government and that an injunction would not be adverse to the public interest.

1. Controlled Substances Act

First and [*154]  foremost, as set out above, Congress has specifically found that the importation and consumption of controlled substances is adverse to the public interest. 21 U.S.C. §§ 801(2), 801a(1). Congress has specifically found that the drug at issue here, DMT, has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1), (c), sched. I(c)(6). n13

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n13 Judge Seymour appears to assert that it is improper to rely on these congressional findings in light of the passage of RFRA. Opinion of Seymour, J., at 27 n.8 ("Judge Murphy relies heavily on Congress' specific findings that the importation and consumption of controlled substances are adverse to the public interest . . . while totally ignoring the immediate and strong reaction Congress had to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990)."). Judge Seymour's assertion is flawed. As the congressional findings accompanying RFRA make clear, what Congress found offensive about Smith was its abandonment of the compelling interest test with regard to laws neutral to religion. 42 U.S.C. § 2000bb(a). None of the findings in § 2000bb(a), or any other portion of RFRA, indicate that the interests protected by the CSA are not compelling. In fact, there is no mention at all of the CSA in § 2000bb(a). Judge Seymour has simply failed to explain how the findings set out in § 2000bb(a) minimize the magnitude of the interests identified by Congress in enacting the CSA. Because RFRA requires that government conduct which burdens religion be in furtherance of a compelling governmental interest, id. § 2000bb-1(b)(1), and because the congressional findings accompanying the CSA bear on the question whether the governmental interests at issue in this case are compelling, the congressional findings accompanying the CSA are highly relevant.


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Against this backdrop, the district court found that the evidence was in equipoise as to the risk of diversion of hoasca to non-religious purposes and the danger of health complications flowing from hoasca consumption by UDV members. As noted above, both Judge Seymour and Judge McConnell erroneously rely on this finding to conclude that the United States has not carried its burden of demonstrating that the restrictions in the CSA against the importation and consumption of hoasca further the United States' compelling interests and that, concomitantly, UDV is substantially likely to prevail on the merits of its RFRA claim. Opinion of Seymour, J., at 21; Opinion of McConnell, J., at 17-18. The United States, however, has no such burden at the third and fourth steps of the preliminary injunction analysis. At these stages, it is UDV that must demonstrate the requested preliminary injunction is not adverse to the public interest and its harm outweighs any harm to the government. Furthermore, because the preliminary injunction UDV is requesting would upset the status quo, it must show that the exigencies of the case entitle it to this extraordinary interim relief and that the [*156]  balance of harms favors the issuance of an otherwise disfavored interim remedy. In light of the congressional findings noted above and the equipoised nature of the parties' evidentiary submissions, UDV has not met its burden. n14

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n14 Judge Seymour seems to take comfort in the fact that the preliminary injunction only temporarily precludes the government from enforcing the CSA. See Opinion of Seymour, J., at 24. As noted above, however, Congress has specifically found that the consumption of DMT is unsafe even when consumed under medical supervision and that the drug has a high potential for abuse. See 21 U.S.C. § 812(b)(1). UDV could not muster sufficient evidence to demonstrate that consumption of DMT is safe or that there is no risk of diversion. Although it is true that the preliminary injunction could be quickly lifted should the United States prevail on the merits, such a course would not remediate any harm that might occur to the members of UDV or the general citizenry from diverted hoasca while the preliminary injunction was in effect. Judge Seymour's approach thus seems to wholly discount those risks that inhere in the preliminary injunction.


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The United States suffers irreparable injury when it is enjoined from enforcing its criminal laws. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 439 (Rehnquist, Circuit Justice 1977). This injury to the United States, which when coupled with UDV's failure of proof on the questions of diversion and danger to UDV members prevents UDV from meeting its burden under the third and fourth preliminary injunction factors, is exacerbated by the burdensome and constant official supervision and oversight of UDV's handling and use of hoasca affirmatively required by the injunction in this case. The district court's preliminary injunction is eleven pages long and contains thirty-six paragraphs; it modifies or enjoins enforcement of a staggering number of regulations implementing the CSA, with the result that the United States must actually set about to aid UDV in the importation of an unlimited supply of hoasca. n15 UDV has not carried its burden of demonstrating that its injury, although admittedly irreparable, sufficiently outweighs the harm to the government so as to warrant interim relief that alters the status quo pending [*158]  a determination of the merits. n16

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n15 See, e.g., Preliminary Injunction para. 13 (giving UDV right to refuse to allow inspections of any items, pending a determination by the district court, if UDV concludes such an inspection would violate its right to freedom of association); id. para. 15 (directing United States and UDV to "arrive at a mutually acceptable means of disposal of any hoasca that must be disposed of"); id. para. 24 (setting out time frames within which United States must conduct inspections); id. para. 25 (requiring United States to expedite UDV applications to import and distribute hoasca); id. para. 29 (seriously limiting circumstances under which United States can revoke UDV's registration to import and distribute hoasca); id. para. 35 (requiring United States to designate person or small group of persons to act as liaison with UDV).


n16 In concluding that the injunction in this case is prohibitory rather than mandatory, Judge Seymour makes much of the fact that many of the provisions in the preliminary injunction were added at the government's insistence. Opinion of Seymour, J., at 16-17. This, however, over-simplifies the procedural history and thereby belies the actual process by which the burdensome provisions found their way into the district court's preliminary injunction. After concluding that UDV was entitled to an injunction on its RFRA claim, the district court directed the parties to submit proposed forms of a preliminary injunction. When the parties were unable to agree as to the form of the preliminary injunction, UDV submitted a memorandum on the question. In that memorandum, UDV proposed a limited regulatory scheme different and independent from the regulations set out in the Code of Federal Regulations governing Schedule I substances. In response, the United States asserted that UDV remained bound by applicable regulations relating to the lawful importation and distribution of Schedule I substances because UDV had never lodged a proper legal challenge to those regulations. The government thus asserted that although UDV had challenged restrictions on its use of hoasca, it had not challenged generally applicable regulations regarding the lawful importation, distribution, and possession of Schedule I substances. Accordingly, the form of the preliminary injunction submitted by the government required UDV to comply with all applicable statutes and regulations to which UDV had failed to lodge a legal challenge. Notably, no provision in the government's proposed preliminary injunction required the government to engage in a cooperative enterprise with UDV by setting strict time limits within which the government was obliged to act, required the government to negotiate with UDV over disposal of hoasca, or required the government to designate a liaison to deal directly with UDV. Accordingly, it is simply wrong to assert that it was the government who requested the provisions in the preliminary injunction that it now challenges as burdensome. Furthermore, it is wrong to assert that the preliminary injunction entered by the district court is wholly prohibitory. The provisions identified above are clearly mandatory in that they require the government to take action outside of the normally applicable regulatory framework for the lawful importation, distribution, and possession of a substance containing DMT. As a consequence, the preliminary injunction constructs a customized regulatory scheme for UDV that differs from the regulatory scheme otherwise applicable to the lawful importation, distribution, and possession of Schedule I substances. Accordingly, Judge Seymour is wrong in discounting the magnitude of the harm to the government from the district court's eleven-page, thirty-six-paragraph preliminary injunction. Although the preliminary injunction at issue here is subject to a heightened standard because it alters the status quo, thus obviating the need to definitively determine whether the injunction as a whole is mandatory or prohibitory, Judge Seymour certainly errs in discounting the burdens imposed on the government as a result of the district court's preliminary injunction.


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Unfortunately, Judge Seymour's separate opinion could be read as shifting the burden to the government to prove that its harm flowing from an injunction prohibiting enforcement of the CSA outweighs the harm to UDV and that the preliminary injunction is not adverse to the public interest. Opinion of Seymour, J., at 24 ("As the UDV established to the district court's satisfaction, neither of the potential harms asserted by the government are more likely than not to occur. Thus, the balance is between actual irreparable harm to plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence."). The problem with such an approach is that even when a requested preliminary injunction does not alter the status quo, the movant has the burden of demonstrating, clearly and unequivocally, that it is entitled to interim relief that is always extraordinary. Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260-61 (10th Cir. 2004). Because this particular preliminary injunction does alter the status quo, UDV must make an even more rigorous showing, as set out above, of its entitlement to interim relief.  [*160]  See supra at 9-10. With this in mind, it must be noted that it is UDV that failed to show by a preponderance of the evidence there was no risk of diversion and no risk to the health of UDV members. The government has no such burden of proof at the third and fourth stages of the preliminary injunction analysis. To conclude that UDV satisfied its burden defies the record and the district court's findings that the evidence is in equipoise.

Judge Seymour's discussion of the balancing of the harms flowing from enjoining enforcement of the CSA is similarly unconvincing. UDV would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim. On the other hand, the magnitude of the risk of harm to the government is unquestionably substantial. Although the harm identified by the government is a risk of diversion and a risk of adverse health consequences to members of UDV or to a member of the public who obtains diverted hoasca, if the risk comes to fruition the consequences could be deadly. As explained above, UDV failed to demonstrate that there is no risk of diversion or of adverse health consequences to UDV members. As the [*161]  district court's findings demonstrate, it is just as likely as not that hoasca will be diverted and that members of UDV and the public will suffer adverse health consequences. Cf. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6) (finding that DMT is unsafe to consume even under medical supervision). Both Judge Seymour and Judge McConnell seriously undervalue the magnitude of the risks identified by the government in concluding that UDV's actual harm outweighs the risks of harm identified by the government.

At its base, the concurring opinion of Judge McConnell would convert RFRA into a 900-pound preliminary injunction gorilla. According to Judge McConnell, the third and fourth preliminary injunction factors have no real play when RFRA is involved. Opinion of McConnell, J., at 36-37 ("When the government fails to demonstrate its compelling interest in burdening a constitutional right, courts routinely find that, in the absence of a compelling justification for interference, the balance of harms and public interest also favor protecting the moving party's burdened rights."). Thus, according to Judge McConnell, once a party demonstrates a substantial likelihood [*162]  of success on the merits in a RFRA case, the inquiry is complete. Id. Other than simply noting that Congress passed RFRA only to restore the compelling interest test from Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), Judge McConnell offers no real support for his implicit proposition that RFRA renders irrelevant each of the remaining preliminary injunction factors. n17 Judge McConnell thus rewrites RFRA so that it would now legislatively overrule decades of preliminary injunction jurisprudence, something RFRA does not do expressly.

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n17 Judge McConnell does cite to a number of cases involving the deprivation of a constitutional right. Opinion of McConnell, J., at 37-38. As noted above, both Judges McConnell and Seymour seem to forget that the right at issue in this case is based on a congressional enactment, not the Constitution. Furthermore, as noted at length above, RFRA must be read in light of its historical context. RFRA merely restored the law to its pre-Smith state, a state of law under which courts routinely rejected religious exemptions from generally applicable drug laws.


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Equally unconvincing is Judge McConnell's assertion that equitable considerations that might not carry the day for the government at the likelihood- of-success-on-the-merits stage are rendered irrelevant by RFRA at the balancing- of-harms and public-interest stages. Opinion of McConnell, J., at 36 ("The dissent attempts to make an end run around RFRA's reinstatement of strict scrutiny by repackaging all of the arguments that would be relevant to the merits (where the presumption of invalidity would clearly apply) as arguments about the equities (where it is disregarded)."). The preliminary injunction is, after all, an equitable remedy. Even where a movant demonstrates that it is substantially likely to prevail on the merits, a showing that UDV has failed to make, there may very well be equitable considerations counseling against the granting of extraordinary relief prior to a final determination on the merits. This is just such a case. Without regard to whether UDV is substantially likely to prevail on the merits, the evidence adduced before the district court raises such serious questions about the adverse health effects of hoasca, both as to UDV members and the public at large,  [*164]  and about the consequences of forced non-compliance with the Convention that interim equitable relief is not appropriate in this case.

Nor does the Supreme Court's recent decision in Ashcroft v. ACLU, 159 L. Ed. 2d 690, 124 S. Ct. 2783 (2004), support Judge McConnell's assertion that equitable considerations are irrelevant under RFRA, once a movant has demonstrated a substantial likelihood of success on the merits. See Opinion of McConnell, J., at 38-40. Judge McConnell cites the following passage from Ashcroft in support of his proposition:

As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. . . . For us to assume, without proof, that filters are less effective than COPA would usurp the District Court's factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.

Opinion of McConnell, J., at 39-40 (quoting Ashcroft, 124 S. Ct. at 2794). Contrary to Judge McConnell's assertion, this [*165]  passage simply does not relate in any fashion to the equitable process of balancing the competing harms or examining how a requested injunction would affect the public interest that occurs at the third and fourth stages of the preliminary injunction inquiry. Instead, it relates only to the question whether the movants in that case were likely to prevail on the merits. See Ashcroft, 124 S. Ct. at 2791-92 ("As the Government bears the burden of proof on the ultimate question of COPA's constitutionality, respondents must be deemed likely to prevail unless the Government has shown that respondents' proposed less restrictive alternatives are less effective than COPA.").

To the extent that there is any meaningful discussion in Ashcroft of the particular issue before this court, n18 Ashcroft supports the approach set out in this opinion. In concluding that the preliminary injunction should stand under the particular circumstances of that case, the Ashcroft Court noted as follows:

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n18 That is, whether equitable considerations might occasionally preclude the grant of a preliminary injunction even though a movant has demonstrated a likelihood of success on the merits.


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The potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity laws already on the books.

Ashcroft, 124 S. Ct. at 2794 (citation omitted). This passage indicates that "practical" considerations, including considerations that might not carry the day at the likelihood-of-success-on-the-merits stage, are nevertheless relevant when a court is undertaking a weighing of the equities. Id. In this case, those practical considerations most assuredly counsel against granting interim relief to UDV. The record clearly indicates, and the district court found, that it is just as likely [*167]  as not that UDV members will suffer adverse health consequences as a result of the consumption of hoasca and that hoasca will be diverted to the general public. Furthermore, with the preliminary injunction in place, the government is left with no alternative avenues to further the important public safety policies underlying the CSA. This is in stark contrast to the situation in Ashcroft, wherein the government could "in the interim [continue to] enforce obscenity laws already on the books." Id. For those reasons set out above, this is clearly one of those cases where equitable considerations weigh heavily against the entry of a preliminary injunction, even assuming UDV has demonstrated a substantial likelihood of prevailing on the merits.

2. United Nations Convention on Psychotropic Substances

As noted above, a preliminary injunction requiring the United States to violate the Convention could seriously impede the government's ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a phenomenon common to many countries . .  [*168]  . and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances."). Furthermore, the only evidence in the record on this question, the Dalton declaration, indicates the need to avoid a violation that would undermine the United States' role in curtailing illicit drug trafficking.

Without regard to whether the declaration and congressional findings are sufficient to carry the government's burden of demonstrating that absolute compliance with the Convention is the least restrictive means of advancing the government's compelling interest, the declaration, taken together with the congressional findings, certainly bears on the question of harm to the United States and the adversity of the preliminary injunction to the public interest. These matters were not even addressed by the district court. In light of the declaration, the congressional findings, and the extant status quo, UDV has simply not carried its burden of demonstrating that its interest in the use of sacramental hoasca pending the resolution of the merits of its complaint outweighs the [*169]  harm resulting to the United States from a court order mandating that it violate the Convention. Nor has UDV shown that such an injunction is not adverse to the public interest.

III.

The court correctly reaffirms the central holding in SCFC ILC that when a movant is seeking one of the three historically disfavored types of preliminary injunctions, the movant must satisfy a higher burden. I, therefore, join parts I, II, and III.A of the per curiam opinion.

For those reasons set out above, UDV has failed to make the strong showing necessary to demonstrate its entitlement to a judicially ordered alteration of the status quo pending the resolution of the merits of this case. First, UDV has not demonstrated a substantial likelihood of success on the merits. The government's assertion that the ban on the consumption of DMT/hoasca is necessary to protect the health of UDV members and to prevent diversion of a Schedule I psychotropic drug to the general population is fully supported by the congressional findings set out in the CSA. 21 U.S.C. §§ 801(2), 801a(1), 812(b)(1), 812(c), sched. I(c)(6). These same congressional findings also demonstrate the [*170]  need for uniformity in administration of the drug laws. See Smith, 494 U.S. at 905-06 (O'Connor, J., concurring); Israel, 317 F.3d at 771. At the same time, it is clear that Congress enacted RFRA to restore the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(a). Prior to Smith, courts routinely rejected religious exemptions from laws regulating controlled substances. See supra at 19-20 (setting out pre- and post-RFRA cases rejecting religious exemptions from neutrally applicable drug laws). There is simply nothing in the legislative history of RFRA to indicate that it was intended to mandate a drug-by-drug, religion-by-religion judicial reexamination of the nation's drug laws. UDV has failed to demonstrate that it is substantially likely to prevail on its claim that RFRA exempts it from the prohibition against the consumption of DMT set out in the CSA. UDV has likewise failed to demonstrate that it is substantially likely to prevail on its RFRA claim, when measured against the government's interest in complying with the Convention. Congress specifically found that international cooperation is necessary to [*171]  stem the international flow of psychotropic drugs. 21 U.S.C. § 801a(1). The Dalton declaration demonstrates that an injunction forcing the United States into non-compliance with the Convention could undermine the United States' efforts to obtain international cooperation to control the cross- border traffic in illegal drugs. Because UDV has failed to demonstrate a substantial likelihood of success on the merits, it is not entitled to a preliminary injunction.

Even setting aside the question of whether UDV is substantially likely to prevail on the merits, UDV has independently failed to carry its heavy burden of establishing that the balance of harms and the public interest favors the issuance of a preliminary injunction. Setting aside the Convention for the moment and considering these factors only in relation to the CSA, UDV failed to establish entitlement to extraordinary interim relief altering the status quo. The district court found, as part of its analysis of likelihood of success on the merits, that the evidence regarding risk of diversion and harm to members of UDV was virtually balanced and in equipoise. In other words, the district court found that [*172]  it is just as likely as not that hoasca will be diverted to the general public and that members of UDV will suffer harm from the consumption of hoasca. These findings make it clear that UDV failed to muster sufficient evidence to demonstrate that the balance of harms weighs clearly and unequivocally in its favor and that the public interest clearly and unequivocally favors the entry of a preliminary injunction. The harm to the government and public interest is not, however, singularly related to the CSA. Harm to the government and the public interest resulting from the court- ordered violation of the Convention remain unaddressed by UDV or the district court. Furthermore, both Judge Seymour's and Judge McConnell's attempts to minimize the significant harm flowing to the government as a result of its forced non-compliance with the Convention are flawed. With the evidence of the balance of harms and public interest in such a state, UDV has utterly failed to meet its burden under the third and fourth preliminary injunction factors.

I would reverse the district court's entry of a preliminary injunction. Because a majority of the court concludes otherwise, I respectfully dissent [*173]  from parts III.B and IV of the per curiam opinion.

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New Mexico corporation on its own behalf and on behalf of all its members in the United States; JEFFREY BRONFMAN, individually and as President of UDV‑USA; DANIEL TUCKER, individually and as Vice‑President of UDV‑USA; CHRISTINA BARRETO, individually and as Secretary of UDV‑USA; FERNANDO BARRETO, individually and as Treasurer of UDV‑USA; CHRISTINE BERMAN; MITCHEL BERMAN; JUSSARA DE ALMEIDA DIAS, also known as Jussara Almeida Dias; PATRICIA DOMINGO; DAVID LENDERTS; DAVID MARTIN; MARIA EUGENIA PELAEZ; BRYAN REA; DON ST. JOHN; CARMEN TUCKER; SOLAR LAW, individually and as members of UDV‑USA, Plaintiffs ‑ Appellees, v. JOHN ASHCROFT, Attorney General of the United States; ASA HUTCHINSON, Administrator of the United States Drug, Enforcement Administration; PAUL H. O'NEILL, Secretary of the Department of Treasury of the United States; DAVID C. IGLESIAS, United States Attorney for the District of New Mexico; DAVID F. FRY, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico; all in their official capacities, Defendants ‑ Appellants, CHRISTIAN LEGAL SOCIETY; THE NATIONAL ASSOCIATION OF THE EVANGELICALS; CLIFTON KIRKPATRICK, as the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); QUEENS FEDERATION OF CHURCHES, Amicus Curiae.

No. 02-2323 Filed United States Court of Appeals Tenth Circuit November 12 2004 Patrick Fisher Clerk

ON REHEARING EN BANC

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV‑00‑1647 JP/RLP)

Gregory G. Katsas, Deputy Assistant Attorney General (David C. Iglesias, Attorney General, Peter D. Keisler, Assistant Attorney General, Michael Jay Singer, Attorney, Department of Justice and Matthew M. Collette, Attorney, Department of Justice with him of the briefs), of the Department of Justice, Washington, D.C., for Defendants-Appellants.

John W. Boyd (Nancy Hollander with him on the brief), of Freedom, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, New Mexico for Plaintiffs-Appellees.

Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Colby, of Center for Law and Religious Freedom, Christian Legal Society, Annandale, Virginia, filed an amicus curiae brief on behalf of Plaintiffs-Appellees.

Before TACHA, Chief Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, OíBRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

PER CURIAM.

I.

This matter is before the en banc court to review issues emanating from the panel opinion in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). The panel affirmed a preliminary injunction, granted under the Religious Freedom Restoration Act ("RFRA"), which enjoined the United States from relying on the Controlled Substances Act ("CSA") and the United Nations Convention on Psychotropic Substances ("Convention") to prohibit the sacramental use of hoasca by Uniao do Vegetal and its members (collectively "UDV"). This court granted rehearing to review the different standards by which we evaluate the grant of preliminary injunctions, and to decide how those standards should be applied in this case.

II.

The underlying facts relating to the parties and the issues are fully described in the panel opinion and are therefore unnecessary to reiterate here. UDV invoked RFRA, 43 U.S.C. § 2000bb-1, to obtain declaratory and injunctive relief which would prevent the government from prohibiting UDV's importation, possession, and use of hoasca for religious purposes and from attempting to seize the substance or prosecute individual UDV members.(1) After an evidentiary hearing, the district court granted UDV's motion for a preliminary injunction pending a decision on the merits. The government appealed that decision, the panel affirmed, and we granted the en banc petition.(2)

III.

The en banc court is divided over the outcome of this case. Nevertheless, a majority of the court has voted to maintain a heightened standard for granting any of the three historically disfavored preliminary injunctions. A different majority has voted to affirm the district court's entry of a preliminary injunction in this case.

A. Standards for Granting Disfavored Preliminary Injunctions

In SCFC ILC, Inc. v. Visa USA, Inc., this court identified the following three types of specifically disfavored preliminary injunctions and concluded that a movant must "satisfy an even heavier burden of showing that the four [preliminary injunction] factors . . . weigh heavily and compellingly in movant's favor before such an injunction may be issued": (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. 936 F.2d 1096, 1098-99 (10th Cir. 1991). With one important alteration, a majority of the en banc court has voted to affirm the core holding of SCFC ILC. Part I of the Opinion of Murphy, J., joined by Ebel, Kelly, Hartz, O'Brien, McConnell, and Tymkovich, JJ.; Part I of the Opinion of McConnell, J, joined by Hartz, O'Brien, and Tymkovich, JJ. Thus, if a movant seeks a preliminary injunction that falls into one of the three categories identified in SCFC ILC, the movant must satisfy a heightened burden. The en banc court does, however, jettison that part of SCFC ILC which describes the showing the movant must make in such situations as "heavily and compellingly." SCFC ILC, 936 F.2d at 1098. Instead, the en banc court holds that courts in this Circuit must recognize that any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course. Furthermore, because a historically disfavored preliminary injunction operates outside of the normal parameters for interim relief, movants seeking such an injunction are not entitled to rely on this Circuit's modified-likelihood-of-success-on-the-merits standard. Instead, a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms, and may not rely on our modified likelihood-of-success-on-the-merits standard.

B. Grant of Preliminary Injunction in this Case

Although the reasons vary, a majority of the en banc court is of the view that the district court's entry of a preliminary injunction in this case should be affirmed. Part II of Opinion of Seymour, J., joined by Tacha, C.J., and Porfilio, Henry, Briscoe, Lucero, McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.

VI.

The decision of the United States District Court for the District of New Mexico to grant UDV's request for a preliminary injunction is hereby AFFIRMED. The temporary stay of the district court's preliminary injunction issued by this court pending resolution of this appeal is vacated.

No. 02-2323, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft

MURPHY, Circuit Judge, joined in full by EBEL, KELLY, and O'BRIEN, Circuit Judges, and as to Part I by HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in part.

I agree with the per curiam opinion that a movant for a preliminary injunction must make a heightened showing when the requested injunction will alter the status quo. As set out more fully below, such an approach is completely consistent with the historic purpose of the preliminary injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that O Centro Espirita Beneficiente Uniao do Vegetal ("UDV") has sufficiently shown its entitlement to a preliminary injunction prohibiting the United States from enforcing the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. As a direct result of the preliminary injunction embraced by the majority, the United States is placed in violation of the United Nations Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543 (hereinafter the "Convention"). I thus dissent from parts III.B and IV of the per curiam opinion.

I.

1. A Heightened Showing is Appropriate When the Requested Preliminary Injunction Would Alter the Status Quo

The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quotation omitted); accord SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) ("As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." (citation omitted)); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). The Supreme Court has further indicated that the "limited purpose" of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Accordingly, courts should be hesitant to grant the extraordinary interim relief of a preliminary injunction in any particular case, but especially so when such an injunction would alter the status quo prior to a trial on the merits.

This court's precedents are in harmony with the sentiments expressed by the Supreme Court in Mazurek and Camenisch. In particular, this court has identified the following three types of disfavored preliminary injunction and concluded that a movant must make a heightened showing to demonstrate entitlement to preliminary relief: "(1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits." SCFC ILC, 936 F.2d at 1098-99. Because each of these types of preliminary injunction is at least partially at odds with the historic purpose of the preliminary injunction--the preservation of the status quo pending a trial on the merits--this court has held that to obtain such an injunction the movant must demonstrate that "on balance, the four [preliminary injunction] factors weigh heavily and compellingly in his favor." Id. at 1099.

The en banc court specifically reaffirms the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. In advocating the abandonment of this requirement, Judge Seymour suggests that requiring a heightened showing when a requested preliminary injunction would alter the status quo is inconsistent with the need to prevent irreparable harm and is inconsistent with the approaches taken by other circuits. Opinion of Seymour, J., at 4-6. Neither assertion offers a convincing reason for abandoning the well-reasoned approach set out in SCFC ILC.

It is simply wrong to assert that the application of heightened scrutiny to preliminary injunctions which alter the status quo is inconsistent with the purpose of preliminary injunctions. The underlying purpose of the preliminary injunction is to "preserve the relative positions of the parties until a trial on the merits can be held." Camenisch, 451 U.S. at 395; see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2947, at 123 (2d ed. 1995) [hereinafter "Wright & Miller"] (noting that the purpose of the preliminary injunction is to assure that the non-movant does not take unilateral action which would prevent the court from providing effective relief to the movant should the movant prevail on the merits). Although the prevention of harm to the movant is certainly a purpose of the preliminary injunction, it is not the paramount purpose. See Wright & Miller § 2947, at 123 (noting that although the prevention of harm to the movant is an important factor to be considered in deciding whether to grant a preliminary injunction, the primary purpose for such an order is "the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act"). Because a preliminary injunction which alters the status quo is generally contrary to this traditional purpose, such an injunction deserves some form of heightened scrutiny. See id. § 2948, at 133-35 & n.11 (collecting cases for proposition that "the purpose of the preliminary injunction is the preservation of the status quo and that an injunction may not issue if it would disturb the status quo"). Such an approach is supported by strong policy rationales.

Any injury resulting from a preliminary injunction that merely preserves the status quo is not a judicially inflicted injury. Instead, such injury occurs at the hands of a party or other extrajudicial influence. By contrast, an injury resulting from a preliminary injunction that disturbs the status quo by changing the relationship of the parties is a judicially inflicted injury. It is injury that would not have occurred but for the court's intervention and one inflicted before a resolution of the merits. Because the issuing court bears extra responsibility should such injury occur, it should correspondingly be particularly hesitant to grant an injunction altering the status quo unless the movant makes an appropriate showing that the exigencies of the case require extraordinary interim relief. It may be small consolation should the issuing court ultimately resolve the merits in favor of the non-moving party; at that point the non-moving party has often incurred significant costs as a result of abiding by the improvident preliminary injunction.(1) A plaintiff who was willing to live with the status quo before filing its complaint should meet a higher standard in order to have the court intervene with an injunction that alters the status quo. Judge Seymour's approach, which seeks to elevate the importance of irreparable harm at the expense of the status quo, is inconsistent with the historic underpinnings of the preliminary injunction.

Nor is the failure of other courts to adequately distinguish between mandatory injunctions and injunctions that alter the status quo a sufficient reason to abandon SCFC ILC. See Opinion of Seymour, J., at 4 & n.1. In asserting that preliminary injunctions which alter the status quo should not be an independent disfavored category, Judge Seymour relies heavily on the fact that in cataloging the types of disfavored injunctions, no other court has chosen to specifically distinguish between preliminary injunctions which alter the status quo and preliminary injunctions which are mandatory. Id. None of the cases cited by Judge Seymour, however, contain any discussion of this question. Instead, those cases simply note, almost reflexively, that any preliminary injunction which alters the status quo is a mandatory injunction and, thus, subject to heightened scrutiny. Id. (collecting cases). The reflexive equation of preliminary injunctions which alter the status quo with mandatory injunctions by the courts cited by Judge Seymour is simply not a compelling justification to abandon the reasoned approach from SCFC ILC.

In any event, it is certainly true that courts have historically applied a more stringent standard to mandatory preliminary injunctions for the very reason that those injunctions generally do alter the status quo. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). In fact, most courts decide whether a given preliminary injunction is "mandatory" or "prohibitory" by determining whether or not it alters the status quo. See, e.g., Tom Doherty Assocs., 60 F.3d at 34; Acierno v. New Castle County, 40 F.3d 645, 647 (3d Cir. 1994); Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994); Martinez v. Mathews, 544 F.2d 1233, 1242-43 (5th Cir. 1976). For these courts, then, the question whether an injunction is mandatory or prohibitory is merely a proxy for the more significant question whether an injunction alters the status quo. Thus, to the extent these two categories do overlap, it is indeed strange to keep the proxy while jettisoning the underlying consideration giving rise to that proxy. See Opinion of Seymour, J., at 4, 9-10 (advocating the abandonment of heightened scrutiny for injunctions which alter the status quo, while maintaining heightened scrutiny for mandatory injunctions).

There is good reason, however, to distinguish between mandatory injunctions and injunctions which alter the status quo and to treat both types as disfavored. As set out above, "[a] preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only to preserve the status quo until a trial on the merits may be had." SCFC ILC, 936 F.2d at 1099. Although mandatory injunctions also generally alter the status quo, that is not always the case. It is not at all difficult to envision situations where a mandatory injunction would preserve the status quo and a prohibitory injunction would alter the status quo. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 830 n.21 (D.C. Cir. 1984) (noting that whether a mandatory or prohibitory injunction will maintain or alter the status quo depends on whether the status quo is a "condition of action" or a "condition of rest"). Without regard to whether a mandatory preliminary injunction alters the status quo, however, it is still appropriate to disfavor such injunctions "because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction." SCFC ILC, 936 F.2d at 1099. Thus, it is simply incorrect to assert that there is perfect overlap between these two categories and that the concept of status quo should be folded into the question whether an injunction is mandatory or prohibitory. The fact that other courts have failed to recognize these subtle distinctions is simply no reason to abandon the three artfully drawn categories set out in SCFC ILC.

For these reasons, the court is correct in reaffirming the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. Nevertheless, the decision to jettison SCFC ILC's "heavily and compellingly" language as the articulated standard for granting any of the three types of disfavored preliminary injunctions is appropriate. It is enough to note that courts in this Circuit should recognize that each of the three types of injunction identified above is disfavored and that a request for such an injunction should be even more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is certainly extraordinary. See Enter. Mgmt. Consultants, 883 F.2d at 888 (holding that even a traditional injunction, i.e., an injunction which preserves the status quo, is an "extraordinary" and "drastic" remedy). Furthermore, because a preliminary injunction that alters the status quo operates outside the historic parameters for such interim relief, movants should not be able to rely on this Circuit's modified-likelihood-of-success-on-the-merits standard. Instead, in addition to making a strong showing that the balance of the harms tips in its favor and that the preliminary injunction is not adverse to the public interest, a movant seeking a preliminary injunction that alters the status quo should always have to demonstrate a substantial likelihood of success on the merits.(2)

B. The Status Quo in This Case is the Enforcement of the CSA and Compliance with the Convention

The status quo in fact in this case is the enforcement of the CSA and compliance with the Convention. The record is clear that both UDV itself and the United States recognized that the importation and consumption of hoasca violated the CSA. UDV made a concerted effort to keep secret its importation and use of hoasca. On the relevant import forms, UDV officials in the United States generally referred to hoasca as an "herbal tea"; they never called it hoasca or ayahuasca or disclosed that it contained DMT. UDV president Jeffrey Bronfman informed customs brokers that the substance being imported was an "herbal extract" to be used by UDV members as a "health supplement." Furthermore, in an e-mail drafted by Bronfman, he emphasized the need for confidentiality regarding UDV's "sessions" involving hoasca: "Some people do not yet realize what confidentiality is and how careful we need to be. People should not be talking publicly anywhere about our sessions, where we have them and who attends them." When UDV attempted to grow psychotria viridis and banisteriopsis caapi(3) in the United States, it imported the seeds and plants "clandestinely," in the words used by UDV, and required its members to sign confidentiality agreements to keep their attempts secret. All of these actions by UDV demonstrate a recognition that its importation and consumption of hoasca violated the CSA. Likewise, when the United States realized that UDV was importing a preparation which contained DMT, it seized that shipment and additional quantities of the preparation found in a search of Bronfman's residence. Accordingly, although UDV eventually sought a preliminary injunction after the seizure of the hoasca, at all times leading up to that event the record reveals that the status quo was the enforcement of the CSA. Where one party, here UDV, intentionally precludes a contest by concealing material information, the status quo must be determined as of the time all parties knew or should have known all material information.

Although recognizing that UDV "acted in a somewhat clandestine manner in the course of importing the hoasca and using it in its religious ceremonies," Judge Seymour nevertheless asserts that UDV's importation and use of hoasca is still the status quo because UDV's actions were "premised on its firmly held belief that such religious activity was in fact protected from government interference by its right to the free exercise of its religion." Opinion of Seymour, J., at 19 n.3. It is odd, indeed, to assume that UDV thought its actions were entirely lawful and protected by the Religious Freedom Restoration Act ("RFRA") or the First Amendment, in light of the fact that all of its actions were taken in secret. In any event, UDV's reason for doing what it was doing is irrelevant. It simply cannot be the case that a party can establish the status quo in a given case through secretive or clandestine activity. There is enough natural incentive to manipulation in events preceding litigation, and in litigation itself, without providing judicial endorsement of surreptitious conduct by wrapping it in a cloak of "status quo." The "last peaceable uncontested status existing between the parties before the dispute developed," 11A Wright & Miller § 2948, at 136, is most surely the open and notorious actions of the parties before the dispute. Here, it is uncontested that the open and notorious actions of UDV were a facade of compliance with the CSA. Thus, the status quo in this case is the government's enforcement of the CSA.

What is most strange about the approach advocated by Judge Seymour is its apparent reliance on the legal rights of the parties in arriving at the status quo in this case. Although disclaiming such an approach, Opinion of Seymour, J., at 18, Judge Seymour specifically references the parties' legal rights in determining the status quo in this case. Id. ("[W]e are faced with a conflict between two federal statutes, RFRA and the CSA, plus an international treaty, which collectively generate important competing status quos."). If the status quo is both parties exercising their legal rights, but the mutual and contemporaneous exercise of those rights is factually impossible, then the status quo must instead be the exercise of legal rights by only one party. Judge Seymour has not cited a single case to support the assertion that status quo is determined by reference to a party's legal rights. Furthermore, such an approach is clearly inconsistent with this Circuit's historic understanding of what constitutes the status quo. SCFC ILC, 936 F.2d at 1100 ("The status quo is not defined by the [parties'] existing legal rights; it is defined by the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights."). Finally, such an approach is completely unhinged from the reality of the parties' extant relationship and from the historic purposes of the preliminary injunction. For instance, under Judge Seymour's view of what constitutes the status quo, it would not be determinative had the government at first knowingly acquiesced in UDV's consumption of hoasca, believing that such consumption was protected by RFRA, before eventually changing tack and deciding to enforce the CSA. Instead, under Judge Seymour's approach, a relevant consideration for status quo purposes is whether the government was at all times legally entitled to enforce the CSA.(4) This is clearly a question of whether UDV is likely to prevail on the merits. Thus, if a party is likely to prevail on the merits, Judge Seymour would label that merits analysis the status quo and then use it a second time to reduce the movant's burden on the final three preliminary injunction factors. Such an approach lacks logical moorings.

C. Conclusion

In sum, a heightened standard is consistent with the historical underpinnings of the preliminary injunction and is supported by persuasive policy rationales. Furthermore, this court's delineation in SCFC ILC of three types of disfavored preliminary injunction is well-reasoned and consistent with the historic purpose of the preliminary injunction; SCFC ILC should not be completely abandoned simply because other courts have chosen a different course. The status quo in this case is the government's enforcement of the CSA and compliance with the Convention. Accordingly, when analyzing whether UDV is entitled to its requested preliminary injunction, this court will recognize that the requested injunction is disfavored and more closely scrutinize the request to assure that the exigencies of the case support the granting of a particularly extraordinary remedy.(5)

II.

Based heavily on the conclusion that UDV has demonstrated a substantial likelihood of success on the merits, a majority of the en banc court resolves that the district court did not err in granting UDV a preliminary injunction. In contrast to the conclusions of the majority, however, UDV has not demonstrated a substantial likelihood of success on the merits. First, RFRA was intended to restore the compelling interest test that existed before Employment Division v. Smith, 494 U.S. 872 (1990). 42 U.S.C. § 2000bb(b)(1). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances and have continued to do so with RFRA. Second, one only need look to the congressional findings set out in the CSA to see that the United States carried its burden of demonstrating that the prohibition against importing or consuming hoasca furthers its compelling interests in protecting the health of UDV members and preventing diversion of hoasca to non-religious uses. Finally, compliance with the Convention, which results in international cooperation in curtailing illicit drug trafficking, is certainly a compelling interest. The record further indicates that absent strict compliance with the Convention, the United States' efforts in this regard would be hampered.

Quite aside from the question of whether UDV has demonstrated it is substantially likely to prevail on the merits, UDV has not demonstrated its entitlement to a preliminary injunction. In connection with the risk to the health of UDV members and the risk to the public from diversion of hoasca, the district court found the evidence respectively "in equipoise" and "virtually balanced." The district court did not proceed to even address the harm to the government and the public interest resulting from violations of the Convention necessitated by its injunction. With the evidence in this state, UDV has not carried its burden of demonstrating that the third and fourth preliminary injunction factors--that the threatened injury to it outweighs the injury to the United States under the preliminary injunction and that the injunction is not adverse to the public interest--weigh in its favor thereby justifying even a preliminary injunction that does not alter the status quo. Superimposing the more appropriate heightened scrutiny for a disfavored injunction altering the status quo upon the evidence in this case renders the preliminary injunction even more decidedly erroneous.

A. Substantial Likelihood of Success on the Merits

1. Controlled Substances Act

RFRA was never intended to result in the kind of case-by-case evaluation of the controlled substances laws, and the scheduling decisions made pursuant to those laws, envisioned by the majority. In light of the specific findings set out in the CSA with regard to the drug at issue here, it is particularly improper for the court to assume such a function in this case. This is true even though limited religious use of another drug, peyote, has been allowed pursuant to statute, 42 U.S.C. § 1996a, and before that, pursuant to regulation, 21 C.F.R. § 1307.31. Apart from the fact that courts should not direct the nation's drug policy, courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement of those laws. In contrast to the majority's conclusion, RFRA does not compel such an approach.

To the extent that RFRA requires the government to prove a compelling governmental interest and least restrictive means concerning the ban on DMT, see 42 U.S.C. § 2000bb-1(b), the government need turn only to express congressional findings concerning Schedule I drugs. Congress specifically found that these drugs have a high potential for abuse, have no currently accepted medical use, and are not safe for use under any circumstances. 21 U.S.C. § 801(2) ("The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."); id. § 801a(1) ("The Congress has long recognized the danger involved in the manufacture, distribution, and use of certain psychotropic substances . . . , and has provided strong and effective legislation to control illicit trafficking and to regulate legitimate uses of psychotropic substances in this country."). As to the specific drug at issue here, DMT, Congress has found that it has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1) (setting out findings required for placement of a drug on Schedule I); id. § 812(c), sched. I(c)(6) (including DMT, dimethyltryptamine, within Schedule I). These congressional findings speak to a need for uniformity in administration given the serious problem of drug abuse in the United States. See Smith, 494 U.S. at 905 (O'Connor, J., concurring); United States v. Israel, 317 F.3d 768, 771 (7th Cir. 2003).

RFRA ought not result in a case-by-case redetermination of whether these findings are correct. Judge McConnell takes the opposite position--that congressional findings and scheduling (indeed Congress scheduled DMT) are not enough--stating "[s]uch generalized statements are of very limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance may vary considerably from context to context." Opinion of McConnell, J., at 25. Judge McConnell's opinion suffers from two serious defects.

First, the opinion is simply wrong in asserting that the findings in the CSA are too generalized to have any utility in determining whether the use of DMT in a religious setting is dangerous to the health of UDV practitioners. On this point, Congress could not have been more clear. DMT has a high potential for abuse and is not safe to consume under any circumstances, even including under the supervision of medical personnel. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6).

Second, under the approach advocated by Judge McConnell, whether this court is talking about drinking hoasca tea (ingesting DMT), smoking marijuana, or shooting heroin (Judge McConnell's example), the government will be required to investigate religious use and determine whether the health risks or possibility of diversion would outweigh free exercise concerns. Such a reading of RFRA is difficult to reconcile with RFRA's purpose of merely reviving the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(b)(1). Congress viewed that test as applied in prior federal rulings as "a workable test for striking sensible balances between religious liberty and competing prior governmental interests." Id. § 2000bb(a)(5). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances. See United States v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989); Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989); Olsen v. Iowa, 808 F.2d 652, 653 (8th Cir. 1986); United States v. Rush, 738 F.2d 497, 512-13 (1st Cir. 1984); United States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982). They have continued to do so with RFRA. See Israel, 317 F.3d at 772; United States v. Brown, No. 95-1616, 1995 WL 732803, at *2 (8th Cir. Dec. 12, 1995) (per curiam); United States v. Jefferson, 175 F. Supp. 2d 1123, 1131 (N.D. Ind. 2001). Though these cases involve marijuana, the same result should obtain in this case.(6)

Judge McConnell's view of how RFRA operates seems to overlook events leading up to the passage of RFRA. It is certainly true, as Judge McConnell notes, that RFRA was passed in response to the Supreme Court's decision in Smith and that Smith did happen to involve the sacramental use of peyote. Opinion of McConnell, J., at 21 ("[T]he impetus for enactment of RFRA was the Supreme Court's decision in a case involving the sacramental use of a controlled substance."). Judge McConnell is wrong to imply, however, that Congress intended to alter the ultimate outcome of that case (states may, consistent with the constitution, prohibit all uses, both religious and non-religious, of peyote), as opposed to altering the analytical model set out in that case (no right in the Free Exercise Clause to avoid neutral laws of general application). Opinion of McConnell, J., at 21-23. A review of the findings accompanying RFRA makes clear that Congress was concerned with the latter, not the former.(7) The procedural history preceding the enactment of RFRA does not support Judge McConnell's assertion that this court is free to ignore the congressional findings in the CSA in resolving UDV's RFRA claim.

Equally unconvincing is Judge McConnell's attempt to minimize the government's interest in the uniform enforcement of the CSA. Unlike compulsory education for an additional two years, the interest in enforcement of the nation's drug laws as prescribed by Congress is one of the highest order. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). It directly affects the health and safety of American citizens. Unlike the protection of bald and golden eagle populations, the regulation of controlled substances can mean the difference between human life and death, and a court should not be second-guessing legislative and administrative determinations concerning drug scheduling based upon the record we have in this case. See United States v. Szycher, 585 F.2d 443, 444-45 (10th Cir. 1978); see also Touby v. United States, 500 U.S. 160, 162-163 (1991) (discussing time-consuming procedural requirements involved in drug scheduling). For these reasons, Judge McConnell's reliance on Yoder and Hardman is simply misplaced. Opinion of McConnell, J., at 23-24, 44-45.

Judge McConnell is likewise wrong to assert that the Attorney General has the raw power to grant religious exemptions from the Controlled Substances Act under the guise that it "is consistent with public health and safety." 21 U.S.C. § 822(d) (waiving registration requirements for certain manufacturers, distributors and dispensers if consistent with public health and safety); Olsen, 878 F.2d at 1466 app. (DEA Final Order) ("There is no mechanism for an exemption to scheduling for religious purposes."). The government's regulatory exemption for peyote, 21 C.F.R. § 1307.31, later enacted by statute, 42 U.S.C. § 1996a, was at all times a product of congressional will. See Rush, 738 F.2d at 513 (noting the "sui generis legal status of the American Indians"). The panel opinion recognized this when it rejected an equal protection argument that because the Native American Church's use of peyote is protected, so too should be the use of hoasca. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1186 n.4 (10th Cir. 2003). The panel relied upon Peyote Way Church of God v. Thornburgh, 922 F.2d 1210, 1216 (5th Cir. 1991), which held that an exemption for the Native American Church members to use peyote was rationally related to the government's trust responsibility to preserve Native American culture. To read the exemption for the Native American Church as an indication that Congress and the Executive have not precluded "a particularized assessment of the risks involved in specific sacramental use" of controlled substances, Opinion of McConnell, J., at 25-27, proves too much--the concurring opinion can point to no other controlled substance receiving like treatment.

The CSA envisions careful scheduling of substances. See 21 U.S.C. § 811(c) (listing eight factors which Attorney General must consider before adding or removing a substance from schedules); id. § 812(b) (findings necessary for adding a substance to a schedule); id. § 811(a) (requirement of notice and a hearing before Attorney General may add or remove a substance from schedule). It also envisions medical and scientific uses of controlled substances in the public interest and consistent with public health and safety; "[n]either manufacturing, distribution or dispensing contemplates the possession of controlled substances for other than legitimate medical or research purposes." Olsen, 878 F.2d at 1466 app. (DEA Final Order); see also 21 U.S.C. § 823(a)-(b). Finally, the CSA allocates the burden of production in favor of the government: in any proceeding brought by the government under Title 21, the burden of going forward with evidence of any exemption or exception falls on the person claiming its benefit. 21 U.S.C. § 885(a)(1) (government is not required to negative any exemption or exception).

The careful approach of the CSA should be contrasted with that of this court. Although this court recognizes that "the interests of the government as well as the more general public are harmed if the government is enjoined from enforcing the CSA against the general importation and sale of street drugs, or from complying with the treaty," it then characterizes this case as one "about importing and using small quantities of a controlled substance in the structured atmosphere of a bona fide religious ceremony." Opinion of Seymour, J., at 22-23. Can the free exercise of religion under RFRA really turn on whether the adherent has a religious affinity for street drugs or more esoteric ones?(8)

In light of the congressional purpose behind RFRA of reinstating the pre-Smith compelling interest test, 42 U.S.C. § 2000bb(b)(1), the routine rejection of religious exemptions from drug laws in the pre-Smith era, and the congressional findings undergirding the placement of DMT among the most dangerous and addictive of drugs (i.e., Schedule I substances), UDV has failed to demonstrate that it is likely to succeed on the merits of its claim that RFRA entitles it to freely import and dispense hoasca.

2. United Nations Convention on Psychotropic Substances

The United States argues convincingly that a preliminary injunction requiring it to violate the Convention could seriously impede its ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. See 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a phenomenon common to many countries . . . and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances.").(9) The district court erroneously concluded that the Convention did not cover hoasca. Judge McConnell does not appear to directly address the merits of the district court's conclusion, instead concluding that the government has failed to carry its burden under RFRA of demonstrating narrow tailoring. Opinion of McConnell, J., at 29-33. Judge Seymour, on the other hand, takes an entirely different tack. In her separate opinion, she asserts that because the Convention includes a provision allowing "signatory nations to seek an exemption from the treaty for indigenous plants containing prohibited substances 'traditionally used by certain small, clearly determined groups in magical or religious rites,'" the government's "argument that it will be significantly harmed by a preliminary injunction temporarily restraining it from enforcing the treaty against the UDV does not ring entirely true." Opinion of Seymour, J., at 25. The district court, Judge McConnell, and Judge Seymour are all incorrect.

For those reasons set out in the panel dissent, hoasca is a preparation containing a Schedule I substance covered by the Convention. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting). Article 7 of the Convention obligates signatory nations to prohibit all uses of Schedule I substances and to prohibit the import and export of those substances. Convention, supra, at 1, art. 7, 32 U.S.T. 543. The congressional findings in 21 U.S.C. § 801a(1) make clear that international cooperation and compliance with the Convention are essential in providing effective control over the cross-border flow of such substances. In addition, the record contains the declaration of Robert E. Dalton, a State Department lawyer for the Treaty Affairs Office. Dalton's declaration asserts that the need to avoid a violation of the Convention is compelling and that a violation of the Convention would undermine the United States' role in curtailing illicit drug trafficking. It appears that the Dalton declaration is unopposed. In light of the plain meaning of the Convention, the congressional findings on the importance of cooperation, and the Dalton declaration, UDV has not demonstrated a substantial likelihood that it will prevail on the merits of its RFRA claim.

In his separate opinion, Judge McConnell asserts that (1) the government deprived this court of "evidence" necessary to interpret the Convention and (2) the government failed to demonstrate that strictly prohibiting the import and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention. Opinion of McConnell, J., at 29, 30-33. Judge McConnell's assertions are flawed in several respects.

First and foremost, the interpretation of the Convention is a question of law. See, e.g., Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 370 (2d Cir. 2004) (holding that proper interpretation of an international treaty is a question of law subject to de novo review); United States v. Garrido-Santana, 360 F.3d 565, 576-77 (6th Cir. 2004) (same); United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004) (same); Smythe v. United States Parole Comm'n, 312 F.3d 383, 385 (8th Cir. 2002) (same). Here, the district court unequivocally concluded that the Convention did not apply to hoasca. For those reasons set out in the panel dissent, the district court's legal conclusion is erroneous. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting). That the district court did not hold a hearing on this question, does not foreclose this court from recognizing the district court's legal error. When interpreting a treaty this court must "first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992). As set out in the panel dissent, and as elaborated supra, the plain language of the Convention makes clear that all signatories must prohibit the international trafficking of hoasca.

Based on its erroneous legal conclusion that the Convention did not apply to hoasca, the district court precluded the government from presenting evidence regarding the Convention at the evidentiary hearing. In a letter to the parties, the district court indicated as follows: "I have reviewed the parties' briefs on [UDV's] Motion for Preliminary Injunction. I believe that it will be necessary to hold an evidentiary hearing on the following factual issues: 1) the health risks associated with the ceremonial use of hoasca; 2) the potential for diversion of hoasca to non-ceremonial use . . . ." Of course, as noted above, whether hoasca is covered by the Convention is a question of law for the court to decide, not a question of fact like those questions identified by the district court in its letter. Thus, it is strange to assert, as does Judge McConnell, that it would be premature to reach this issue because the district court did not hold an evidentiary hearing on the matter. Opinion of McConnell, J., at 29.

Nor is it altogether accurate to assert that it was the defendants who opposed the introduction of evidence on this question at the hearing. Id. Judge McConnell asserts that UDV "attempted to present evidence regarding the interpretation of the Convention by the International Narcotics Control Board [("INCB")], the international enforcing agency, including a letter by the Secretary of the Board stating that hoasca is not controlled under the Convention." Id. (emphasis added). Judge McConnell makes it appear that UDV sought to produce multiple items of evidence, only one component of which was a letter from the Secretary of the INCB. In fact, UDV merely sought to question a witness about the contents of Plaintiff's Exhibit 54, a letter from the Secretary of the INCB. That letter had already been admitted into evidence and used by both UDV and the government in questioning witnesses regarding the efficacy of the control measures for Schedule I and II drugs under the Convention. Furthermore, as noted by the government below, there are serious questions as to the relevance of the Secretary's opinion regarding whether hoasca is covered by the Convention.

Judge McConnell further asserts that based on a narrow objection by the United States, the district court excluded the evidence, depriving this court of "interpretive history" necessary to a resolution of this appeal.(10) It is far from clear, however, that Plaintiff's Exhibit 54 is as important as Judge McConnell would assume, since neither party saw fit to include it in the record on appeal. Nor is it accurate to assert that the sole basis of the government's objection to the line of questioning was that the district court had not asked the parties to present evidence on the issue. Opinion of McConnell, J., at 29. Instead, the government objected on multiple grounds: (1) the questions were beyond the scope of redirect examination; (2) the letter was legally irrelevant; (3) the district court had previously informed the parties that no evidence would be taken on the Convention; and, most importantly, (4) whether hoasca is covered by the Convention was a legal question for the court to decide.(11) Taken in context, then, it is not appropriate to hold the government responsible, as does Judge McConnell, for the district court's failure to hold a hearing on whether compliance with the Convention is a compelling governmental interest. Id.

Nor is it appropriate to fault the government for failing to demonstrate that strictly prohibiting the importation and consumption of DMT, in the form of hoasca, is the least restrictive way to further the government's interest in complying with the Convention. Opinion of McConnell, J., at 30. The problem, of course, is that the district court short-circuited the government's ability to present evidence on this particular question when it concluded that the Convention did not apply to hoasca. Under these circumstances, it seems strange to punish the government for this purported evidentiary deficiency. As we have it, the Dalton declaration is the only evidence in the record on the question and is uncontradicted. With the record in this state, UDV has failed to demonstrate a substantial likelihood of success on the merits.(12)

In response, Judge McConnell envisions an elaborate process whereby, to demonstrate narrow tailoring, the government is obligated to request that DMT be removed from the schedule of drugs covered by the Convention. Opinion of McConnell, J., at 30-31. That is, until the government seeks to have DMT removed from coverage by the Convention, it cannot demonstrate that "strict" prohibitions against the import of DMT are the least restrictive means of advancing its interest in complying with the Convention. It is worth noting at the outset that this argument is not advanced on appeal by UDV. In any event, Congress has specifically found that DMT is a highly dangerous and addictive substance. It is difficult to see how asking that DMT be removed from the schedule of drugs covered by the Convention advances the government's interests in any way. To the extent that Judge McConnell is implying that the government could seek an exemption allowing importation into and consumption of DMT in the United States, whether or not that DMT came in the form of hoasca, while the remaining signatories remain bound by the terms of the Convention to prevent international trafficking in DMT, his assertion finds absolutely no support in the language of Article 2. There is simply nothing in that particular Article allowing signatory nations to pick and choose which of the Scheduled drugs they will criminalize. It is certainly true that signatory nations can object to the scheduling of new psychotropic drugs and can ask that drugs already scheduled be reclassified. Opinion of McConnell, J., 30-31. Those provisions do not, however, allow for a single nation opt-out; instead, they establish the schedule of drugs that all signatory nations will be obligated to criminalize. It is incongruous to obligate the government to seek to remove DMT from the coverage of the Convention in order to demonstrate that its efforts to restrict the importation and consumption of DMT are the least restrictive means of complying with the Convention.

Judge Seymour does not endorse the district court's conclusion that the Convention does not apply to hoasca. Instead, she asserts that the availability of the exemption in Article 32 of the Convention demonstrates that no significant harm will flow to the government from the injunction. Opinion of Seymour, J., at 24-25; see also Opinion of McConnell, J., at 31-32 (asserting that the failure of the government to seek a reservation under Article 32(4) on behalf of UDV demonstrates the government failed to prove that the strict prohibition against the importation and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention). What Judges Seymour and McConnell fail to acknowledge, however, is that the exemption set out in Article 32(4) allows signatory nations to make a reservation as to all of the provisions of Article 7, except for the provisions of Article 7 prohibiting the international trafficking of psychotropic substances. Article 32(4) specifically provides as follows:

A State on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites, may, at the time of signature, ratification or accession, make reservations concerning these plants, in respect of the provisions of article 7, except for the provisions relating to international trade.

Convention, supra, at 1, art. 32(4), 32 U.S.T. 543 (emphasis added). In light of this very specific language, it is not possible to treat the exemption set out in Article 32 as diminishing the significant injury to the government flowing from an injunction mandating that the government allow the importation of hoasca.

B. Balance of Harms and Public Interest

For those reasons set out above, UDV has not demonstrated a substantial likelihood of success on the merits of its RFRA claim. This is especially true in light of the heightened burden on UDV to demonstrate its entitlement to a preliminary injunction that upends the status quo. Independent of the question of likelihood of success on the merits, however, UDV has not demonstrated that its harm outweighs the harm flowing to the government as a result of the preliminary injunction or that the preliminary injunction is not adverse to the public interest.

RFRA provides that once a person proves that a law substantially burdens the exercise of religion, the government has the burden of going forward and of persuasion in proving that the law furthers a compelling governmental interest and that the law as applied is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000bb-1(a), 2000bb-1(b)(1)-(2), 2000bb-2(3). Though this is a demanding test, see City of Boerne v. Flores, 521 U.S. 507, 534 (1997), it seems particularly appropriate to insist that a movant meet all elements of the preliminary injunction test because RFRA goes beyond the protections offered by the First Amendment. See Kikumura v. Hurley, 242 F.3d 950, 955, 962 (10th Cir. 2001) (requiring consideration of all preliminary injunction elements with RFRA claim). In other words, RFRA is not the First Amendment and UDV has no valid claim that its First Amendment rights are being violated given that the CSA is a neutral law of general applicability. See Smith, 494 U.S. at 885; United States v. Meyers, 95 F.3d 1475, 1481 (10th Cir. 1996). Given evenly balanced evidence concerning the health risks of DMT usage and its potential diversion, UDV cannot satisfy its burden of showing that its injury outweighs any injury to the government and that an injunction would not be adverse to the public interest.

1. Controlled Substances Act

First and foremost, as set out above, Congress has specifically found that the importation and consumption of controlled substances is adverse to the public interest. 21 U.S.C. §§ 801(2), 801a(1). Congress has specifically found that the drug at issue here, DMT, has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1), (c), sched. I(c)(6).(13)

Against this backdrop, the district court found that the evidence was in equipoise as to the risk of diversion of hoasca to non-religious purposes and the danger of health complications flowing from hoasca consumption by UDV members. As noted above, both Judge Seymour and Judge McConnell erroneously rely on this finding to conclude that the United States has not carried its burden of demonstrating that the restrictions in the CSA against the importation and consumption of hoasca further the United States' compelling interests and that, concomitantly, UDV is substantially likely to prevail on the merits of its RFRA claim. Opinion of Seymour, J., at 21; Opinion of McConnell, J., at 17-18. The United States, however, has no such burden at the third and fourth steps of the preliminary injunction analysis. At these stages, it is UDV that must demonstrate the requested preliminary injunction is not adverse to the public interest and its harm outweighs any harm to the government. Furthermore, because the preliminary injunction UDV is requesting would upset the status quo, it must show that the exigencies of the case entitle it to this extraordinary interim relief and that the balance of harms favors the issuance of an otherwise disfavored interim remedy. In light of the congressional findings noted above and the equipoised nature of the parties' evidentiary submissions, UDV has not met its burden.(14)

The United States suffers irreparable injury when it is enjoined from enforcing its criminal laws. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (Rehnquist, Circuit Justice 1977). This injury to the United States, which when coupled with UDV's failure of proof on the questions of diversion and danger to UDV members prevents UDV from meeting its burden under the third and fourth preliminary injunction factors, is exacerbated by the burdensome and constant official supervision and oversight of UDV's handling and use of hoasca affirmatively required by the injunction in this case. The district court's preliminary injunction is eleven pages long and contains thirty-six paragraphs; it modifies or enjoins enforcement of a staggering number of regulations implementing the CSA, with the result that the United States must actually set about to aid UDV in the importation of an unlimited supply of hoasca.(15) UDV has not carried its burden of demonstrating that its injury, although admittedly irreparable, sufficiently outweighs the harm to the government so as to warrant interim relief that alters the status quo pending a determination of the merits.(16)

Unfortunately, Judge Seymour's separate opinion could be read as shifting the burden to the government to prove that its harm flowing from an injunction prohibiting enforcement of the CSA outweighs the harm to UDV and that the preliminary injunction is not adverse to the public interest. Opinion of Seymour, J., at 24 ("As the UDV established to the district court's satisfaction, neither of the potential harms asserted by the government are more likely than not to occur. Thus, the balance is between actual irreparable harm to plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence."). The problem with such an approach is that even when a requested preliminary injunction does not alter the status quo, the movant has the burden of demonstrating, clearly and unequivocally, that it is entitled to interim relief that is always extraordinary. Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260-61 (10th Cir. 2004). Because this particular preliminary injunction does alter the status quo, UDV must make an even more rigorous showing, as set out above, of its entitlement to interim relief. See supra at 9-10. With this in mind, it must be noted that it is UDV that failed to show by a preponderance of the evidence there was no risk of diversion and no risk to the health of UDV members. The government has no such burden of proof at the third and fourth stages of the preliminary injunction analysis. To conclude that UDV satisfied its burden defies the record and the district court's findings that the evidence is in equipoise.

Judge Seymour's discussion of the balancing of the harms flowing from enjoining enforcement of the CSA is similarly unconvincing. UDV would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim. On the other hand, the magnitude of the risk of harm to the government is unquestionably substantial. Although the harm identified by the government is a risk of diversion and a risk of adverse health consequences to members of UDV or to a member of the public who obtains diverted hoasca, if the risk comes to fruition the consequences could be deadly. As explained above, UDV failed to demonstrate that there is no risk of diversion or of adverse health consequences to UDV members. As the district court's findings demonstrate, it is just as likely as not that hoasca will be diverted and that members of UDV and the public will suffer adverse health consequences. Cf. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6) (finding that DMT is unsafe to consume even under medical supervision). Both Judge Seymour and Judge McConnell seriously undervalue the magnitude of the risks identified by the government in concluding that UDV's actual harm outweighs the risks of harm identified by the government.

At its base, the concurring opinion of Judge McConnell would convert RFRA into a 900-pound preliminary injunction gorilla. According to Judge McConnell, the third and fourth preliminary injunction factors have no real play when RFRA is involved. Opinion of McConnell, J., at 36-37 ("When the government fails to demonstrate its compelling interest in burdening a constitutional right, courts routinely find that, in the absence of a compelling justification for interference, the balance of harms and public interest also favor protecting the moving party's burdened rights."). Thus, according to Judge McConnell, once a party demonstrates a substantial likelihood of success on the merits in a RFRA case, the inquiry is complete. Id. Other than simply noting that Congress passed RFRA only to restore the compelling interest test from Sherbert v. Verner, 374 U.S. 398 (1963), Judge McConnell offers no real support for his implicit proposition that RFRA renders irrelevant each of the remaining preliminary injunction factors.(17) Judge McConnell thus rewrites RFRA so that it would now legislatively overrule decades of preliminary injunction jurisprudence, something RFRA does not do expressly.

Equally unconvincing is Judge McConnell's assertion that equitable considerations that might not carry the day for the government at the likelihood-of-success-on-the-merits stage are rendered irrelevant by RFRA at the balancing-of-harms and public-interest stages. Opinion of McConnell, J., at 36 ("[T]he dissent attempts to make an end run around RFRA's reinstatement of strict scrutiny by repackaging all of the arguments that would be relevant to the merits (where the presumption of invalidity would clearly apply) as arguments about the equities (where it is disregarded)."). The preliminary injunction is, after all, an equitable remedy. Even where a movant demonstrates that it is substantially likely to prevail on the merits, a showing that UDV has failed to make, there may very well be equitable considerations counseling against the granting of extraordinary relief prior to a final determination on the merits. This is just such a case. Without regard to whether UDV is substantially likely to prevail on the merits, the evidence adduced before the district court raises such serious questions about the adverse health effects of hoasca, both as to UDV members and the public at large, and about the consequences of forced non-compliance with the Convention that interim equitable relief is not appropriate in this case.

Nor does the Supreme Court's recent decision in Ashcroft v. ACLU, 124 S. Ct. 2783 (2004), support Judge McConnell's assertion that equitable considerations are irrelevant under RFRA, once a movant has demonstrated a substantial likelihood of success on the merits. See Opinion of McConnell, J., at 38-40. Judge McConnell cites the following passage from Ashcroft in support of his proposition:

As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. . . . For us to assume, without proof, that filters are less effective than COPA would usurp the District Court's factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.

Opinion of McConnell, J., at 39-40 (quoting Ashcroft, 124 S. Ct. at 2794). Contrary to Judge McConnell's assertion, this passage simply does not relate in any fashion to the equitable process of balancing the competing harms or examining how a requested injunction would affect the public interest that occurs at the third and fourth stages of the preliminary injunction inquiry. Instead, it relates only to the question whether the movants in that case were likely to prevail on the merits. See Ashcroft, 124 S. Ct. at 2791-92 ("As the Government bears the burden of proof on the ultimate question of COPA's constitutionality, respondents must be deemed likely to prevail unless the Government has shown that respondents' proposed less restrictive alternatives are less effective than COPA.").

To the extent that there is any meaningful discussion in Ashcroft of the particular issue before this court,(18) Ashcroft supports the approach set out in this opinion. In concluding that the preliminary injunction should stand under the particular circumstances of that case, the Ashcroft Court noted as follows:

[T]he potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity laws already on the books.

Ashcroft, 124 S. Ct. at 2794 (citation omitted). This passage indicates that "practical" considerations, including considerations that might not carry the day at the likelihood-of-success-on-the-merits stage, are nevertheless relevant when a court is undertaking a weighing of the equities. Id. In this case, those practical considerations most assuredly counsel against granting interim relief to UDV. The record clearly indicates, and the district court found, that it is just as likely as not that UDV members will suffer adverse health consequences as a result of the consumption of hoasca and that hoasca will be diverted to the general public. Furthermore, with the preliminary injunction in place, the government is left with no alternative avenues to further the important public safety policies underlying the CSA. This is in stark contrast to the situation in Ashcroft, wherein the government could "in the interim [continue to] enforce obscenity laws already on the books." Id. For those reasons set out above, this is clearly one of those cases where equitable considerations weigh heavily against the entry of a preliminary injunction, even assuming UDV has demonstrated a substantial likelihood of prevailing on the merits.

2. United Nations Convention on Psychotropic Substances

As noted above, a preliminary injunction requiring the United States to violate the Convention could seriously impede the government's ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a phenomenon common to many countries . . . and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances."). Furthermore, the only evidence in the record on this question, the Dalton declaration, indicates the need to avoid a violation that would undermine the United States' role in curtailing illicit drug trafficking.

Without regard to whether the declaration and congressional findings are sufficient to carry the government's burden of demonstrating that absolute compliance with the Convention is the least restrictive means of advancing the government's compelling interest, the declaration, taken together with the congressional findings, certainly bears on the question of harm to the United States and the adversity of the preliminary injunction to the public interest. These matters were not even addressed by the district court. In light of the declaration, the congressional findings, and the extant status quo, UDV has simply not carried its burden of demonstrating that its interest in the use of sacramental hoasca pending the resolution of the merits of its complaint outweighs the harm resulting to the United States from a court order mandating that it violate the Convention. Nor has UDV shown that such an injunction is not adverse to the public interest.

III.

The court correctly reaffirms the central holding in SCFC ILC that when a movant is seeking one of the three historically disfavored types of preliminary injunctions, the movant must satisfy a higher burden. I, therefore, join parts I, II, and III.A of the per curiam opinion.

For those reasons set out above, UDV has failed to make the strong showing necessary to demonstrate its entitlement to a judicially ordered alteration of the status quo pending the resolution of the merits of this case. First, UDV has not demonstrated a substantial likelihood of success on the merits. The government's assertion that the ban on the consumption of DMT/hoasca is necessary to protect the health of UDV members and to prevent diversion of a Schedule I psychotropic drug to the general population is fully supported by the congressional findings set out in the CSA. 21 U.S.C. §§ 801(2), 801a(1), 812(b)(1), 812(c), sched. I(c)(6). These same congressional findings also demonstrate the need for uniformity in administration of the drug laws. See Smith, 494 U.S. at 905-06 (O'Connor, J., concurring); Israel, 317 F.3d at 771. At the same time, it is clear that Congress enacted RFRA to restore the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(a). Prior to Smith, courts routinely rejected religious exemptions from laws regulating controlled substances. See supra at 19-20 (setting out pre- and post-RFRA cases rejecting religious exemptions from neutrally applicable drug laws). There is simply nothing in the legislative history of RFRA to indicate that it was intended to mandate a drug-by-drug, religion-by-religion judicial reexamination of the nation's drug laws. UDV has failed to demonstrate that it is substantially likely to prevail on its claim that RFRA exempts it from the prohibition against the consumption of DMT set out in the CSA. UDV has likewise failed to demonstrate that it is substantially likely to prevail on its RFRA claim, when measured against the government's interest in complying with the Convention. Congress specifically found that international cooperation is necessary to stem the international flow of psychotropic drugs. 21 U.S.C. § 801a(1). The Dalton declaration demonstrates that an injunction forcing the United States into non-compliance with the Convention could undermine the United States' efforts to obtain international cooperation to control the cross-border traffic in illegal drugs. Because UDV has failed to demonstrate a substantial likelihood of success on the merits, it is not entitled to a preliminary injunction.

Even setting aside the question of whether UDV is substantially likely to prevail on the merits, UDV has independently failed to carry its heavy burden of establishing that the balance of harms and the public interest favors the issuance of a preliminary injunction. Setting aside the Convention for the moment and considering these factors only in relation to the CSA, UDV failed to establish entitlement to extraordinary interim relief altering the status quo. The district court found, as part of its analysis of likelihood of success on the merits, that the evidence regarding risk of diversion and harm to members of UDV was virtually balanced and in equipoise. In other words, the district court found that it is just as likely as not that hoasca will be diverted to the general public and that members of UDV will suffer harm from the consumption of hoasca. These findings make it clear that UDV failed to muster sufficient evidence to demonstrate that the balance of harms weighs clearly and unequivocally in its favor and that the public interest clearly and unequivocally favors the entry of a preliminary injunction. The harm to the government and public interest is not, however, singularly related to the CSA. Harm to the government and the public interest resulting from the court-ordered violation of the Convention remain unaddressed by UDV or the district court. Furthermore, both Judge Seymour's and Judge McConnell's attempts to minimize the significant harm flowing to the government as a result of its forced non-compliance with the Convention are flawed. With the evidence of the balance of harms and public interest in such a state, UDV has utterly failed to meet its burden under the third and fourth preliminary injunction factors.

I would reverse the district court's entry of a preliminary injunction. Because a majority of the court concludes otherwise, I respectfully dissent from parts III.B and IV of the per curiam opinion.

No. 02-2323; O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft

SEYMOUR, Circuit Judge, concurring in part and dissenting in part, joined in full by TACHA, Chief Judge, PORFILIO, HENRY, BRISCOE, and LUCERO, Circuit Judges, and in Part II by McCONNELL and TYMKOVICH, Circuit Judges.

Like a majority of my colleagues, I am persuaded that the district court did not abuse its discretion in granting the preliminary injunction in this case. I respectfully dissent, however, from the majority's conclusion that the movant for a preliminary injunction must satisfy a heightened burden when the proposed injunction will alter the status quo but the injunction is not also mandatory.

I

It is well established that "[a] preliminary injunction is an extraordinary remedy; it is the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). Its commonly asserted purpose is to "preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). See also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2947 at 123 (2d ed. 1995) (purpose of preliminary injunction is to prevent non-movant from taking unilateral action which would prevent court from providing relief to the movant on the merits).

In making the equitable determination to grant or deny a preliminary injunction, courts tend to balance a variety of factors. We have stated generally that a court will grant preliminary relief only if the plaintiff shows "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). These factors provide guideposts for a court in its attempt to minimize any harm that would result from the grant or denial of preliminary relief. The manner by which a court considers the factors, the relative weight given to each, and the standards by which a movant is required to prove them, are driven by the special and unique circumstances of any given case.

As noted by Professor Dobbs:

[T]he gist of the standards is probably easy to understand in common sense terms even if the expression is imperfect: the judge should grant or deny preliminary relief with the possibility in mind that an error might cause irreparable loss to either party. Consequently the judge should attempt to estimate the magnitude of that loss on each side and also the risk of error.

Dan B. Dobbs, Law of Remedies § 2.11(2) at 189 (2d ed. 1993) (emphasis added). American Hosp. Supply Corp. v. Hospital Prods. Ltd., 780 F.2d 589 (7th Cir. 1986), epitomizes this approach, noting that when a district court is

asked to decide whether to grant or deny a preliminary injunction [it] must choose the course of action that will minimize the costs of being mistaken. . . . If the judge grants the preliminary injunction to a plaintiff who it later turns out is not entitled to any judicial relief whose legal rights have not been violated the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the injunction causes to the defendant while it is in effect. If the judge denies the preliminary injunction to a plaintiff who it later turns out is entitled to judicial relief, the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the denial of the preliminary injunction does to the plaintiff.

Id. at 593. Due to this inherently fluid, multi-faceted, and equitable process, we review a district court's decision to grant or deny injunctive relief for abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). In so doing, we should keep in mind that

the district judge had to act in haste, that he had to balance factors which, though they can be related in a neat formula, usually cannot be quantified, and that in dealing with the parties and their witnesses and counsel in the hectic atmosphere of a preliminary-injunction proceeding the judge may have developed a feel for the facts and equities that remote appellate judges cannot obtain from a transcript.

American Hosp. Supply Corp., 780 F.2d at 594-95. Thus "it is not enough that we think we would have acted differently in the district judge's shoes; we must have a strong conviction that he exceeded the permissible bounds of judgment." Id. at 595.

A.

In SCFC ILC, we held that movants requesting certain preliminary injunctions must meet a heightened standard instead of satisfying the ordinary preliminary injunction test. We detailed that a party who seeks an injunction which either changes the status quo, is mandatory rather than prohibitory, or provides the movant with substantially all the relief he would recover after a full trial on the merits, was required to "show that on balance, the four [preliminary injunction] factors weigh heavily and compellingly in his favor." SCFC ILC, Inc., 936 F.2d at 1099 (emphasis added). We appear to be the only court which has adopted the specific approach of carving out three distinct categories of disfavored injunctions. Other courts have limited to two categories those preliminary injunctions deserving special scrutiny: injunctions which are mandatory or which provide the moving party with all the relief it seeks from a full trial on the merits. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980).(1) In order to bring our jurisprudence in closer accord with these other circuits, and because I am convinced it will cause less confusion to the parties and the district court, I would limit our heightened standard to those two categories of preliminary injunctions.

In doing so, I do not denigrate the general notion that the purpose of a preliminary injunction is to preserve the status quo between the parties pending a full trial on the merits. But this general maxim should not be taken merely at face value or become a goal in and of itself. Rather, the very purpose of preserving the status quo by the grant of a preliminary injunction is to prevent irreparable harm pending a trial on the merits. See, e.g., In re Microsoft, 333 F.3d at 525 ("The traditional office of a preliminary injunction is to protect the status quo and prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits."); Matzke v. Block, 542 F. Supp. 1107, 1113 (D. Kan. 1982) ("The purpose of a preliminary injunction is two-fold: it protects the plaintiff from irreparable injury and it preserves the court's ability to decide the case on the merits."); 11A Wright & Miller, § 2947 at 121 ("a preliminary injunction is an injunction that is issued to protect plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits").

Given the essential role prevention of irreparable harm plays in the grant of preliminary injunctive relief,(2) district courts should consider the question of altered status quo in light of how it impacts the balance of harms between the parties and the public interest, as well as considering what attendant institutional costs may accompany the grant of such relief. As the Fifth Circuit has said, "[i]f the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury." Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974) (citations omitted). Other courts echo this refrain, noting that where preserving the status quo will perpetuate harm against the moving party, an order altering the status quo may be appropriate. See, e.g., Friends For All Children v. Lockheed Aircraft Corp., 746 F.2d 816, 830 n.21 (D.C. Cir. 1984); Crowley v. Local No. 82, Furniture & Piano Moving, 679 F.2d 978, 995 (1st Cir. 1982), reversed on other grounds, 476 U.S. 526 (1984); see also 11A Wright & Miller § 2948 at 133-35. For these reasons, "[t]he focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo." Canal Auth., 489 F.2d at 576. Thus a court's examination of the status quo should occur during the process of balancing the various interests and harms among the parties and the public.

B.

Our circuit currently employs three different standards when granting preliminary injunctions. As a base line, we have articulated that a party's right to injunctive relief must be "clear and unequivocal." See SCFC ILC Inc., 936 F.2d at 1098 (citing Penn v. San Juan Hosp., 582 F.2d 1181, 1185 (10th Cir. 1975)). At one end of the spectrum, we have applied SCFC ILC's "heavily and compellingly" language to injunctions requiring heightened scrutiny. Id. at 1098-99. At the other end, we have adopted a modified approach for the "likelihood of success on the merits" aspect of the four part preliminary injunction test for certain circumstances. Under this alternative approach, if the moving party establishes that the last three factors of the test are in its favor, the party may ordinarily satisfy the first factor by "showing that questions going to the merits are so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999). Within this paradigm, and in accordance with the principle that a preliminary injunction should preserve the parties' positions to prevent irreparable harm and allow the court to make a meaningful decision on the merits, the court's focus properly remains on the balance of relative harms between the parties.

In general, "[e]mphasis on the balance of [irreparable harm to plaintiffs and defendants] results in a sliding scale that demands less of a showing of likelihood of success on the merits when the balance of hardships weighs strongly in favor of the plaintiff, and vice versa." In re Microsoft, 333 F.3d at 526. Thus, the more likely a movant is to succeed on the merits, "the less the balance of irreparable harms need favor the [movant's] position." Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). And, alternatively, "if there is only slight evidence that plaintiff will be injured in the absence of interlocutory relief, the showing that he is likely to prevail on the merits is particularly important." Canal Auth., 489 F.2d at 576-77. The rationality of this approach is evident: where there is a strong indication that the plaintiff is correct on the merits, the less it is likely that the defendant will be harmed by the issuance of a preliminary injunction; where there is little likelihood a plaintiff will be irreparably harmed, preliminary relief is unwarranted unless it is virtually certain plaintiff will win on the merits.

Given the special considerations and potential administrative costs at stake when a court issues a mandatory preliminary injunction, we should more closely scrutinize whether the irreparable harm to the movant substantially outweighs any harm to the non-movant or to the public interest. The movant should clearly show the exigencies of the situation justify the rather unusual injunction. See Tom Doherty Assocs., 60 F.3d at 34 ("[A] mandatory injunction should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial or preliminary relief." (internal quotations omitted)); Anderson, 612 F.2d at 1114 (mandatory preliminary relief justified only where "facts and law clearly favor the moving party" or where "extreme or very serious damage will result"); In re Microsoft, 333 F.3d at 525 (showing for preliminary mandatory relief "must be indisputably clear"); Wetzel, 635 F.2d at 286 (mandatory preliminary injunctions "should be granted only in those circumstances when the exigencies of the situation demand such relief").

Although a mandatory injunction should be granted only where the moving party makes a strong showing that all the preliminary injunction factors weigh in its favor, we should abandon use of the "heavily and compellingly" language employed in SCFC ILC, see 936 F.2d at 1098-99, which is not used by any other circuit. In addition, because a party seeking the grant of a mandatory preliminary injunction must make this stronger showing, the party should not be able to rely on our circuit's modified likelihood of success on the merits standard, even where the balance of harms favors the movant. Rather, the movant for a mandatory preliminary injunction must also establish a substantial likelihood of success on the merits. See Tom Doherty Assocs., 60 F.3d at 33-34 (party seeking mandatory injunction cannot rely solely on circuit's relaxed likelihood of success on merits standard); SCFC ILC, 936 F.2d at 1101 n.11 (applicant for disfavored injunction unlikely to satisfy higher standard without proving likelihood of success on merits).

The same is true for injunctions that provide the movant with all the relief that could be obtained at trial. See SCFC ILC, 936 F.2d at 1099 (applying heightened standard to preliminary injunctions that provide the movant with all relief that could be obtained at trial). In this context, however, the